EXHIBIT 99.12
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SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
DATED AS OF SEPTEMBER 8, 1999
AS AMENDED AND RESTATED AS OF APRIL 25, 2001
AND AS FURTHER AMENDED AND RESTATED AS OF OCTOBER 15, 2002
AMONG
▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
AS BORROWER
AND
THE GUARANTORS REFERRED TO HEREIN
AND
THE LENDERS REFERRED TO HEREIN
AND
BANK OF AMERICA, N.A.
AS ADMINISTRATIVE AGENT
AND
▇▇ ▇▇▇▇▇▇ CHASE BANK
(FORMERLY KNOWN AS THE CHASE MANHATTAN BANK)
AS SYNDICATION AGENT
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
AS CO-DOCUMENTATION AGENTS
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TABLE OF CONTENTS
PAGE
INTRODUCTORY STATEMENT...........................................................................................1
ARTICLE 1 DEFINITIONS................................................................................2
ARTICLE 2 THE LOANS.................................................................................31
Section 2.1. Loans................................................................................31
Section 2.2. Interest Rate Type of the Loans......................................................31
Section 2.3. Total Revolving Letter of Credit Commitment..........................................31
Section 2.4. Letters of Credit....................................................................31
Section 2.5. Repayment of Loans; Evidence of Debt.................................................40
Section 2.6. Interest.............................................................................41
Section 2.7. Commitment Fees and Other Fees.......................................................42
Section 2.8. Termination and/or Reduction of the Total Revolving Letter of Credit Commitment......42
Section 2.9. Prepayments..........................................................................43
Section 2.10. Default Interest; Alternate Rate of Interest.........................................46
Section 2.11. Continuation and Conversion of Loans.................................................47
Section 2.12. Reimbursement of Lenders.............................................................48
Section 2.13. Change in Circumstances..............................................................49
Section 2.14. Change in Legality...................................................................52
Section 2.15. United States Withholding............................................................52
Section 2.16. Interest Adjustments.................................................................55
Section 2.17. Provisions Regarding Payments and Application of Payments............................55
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF the LOAN PARTIES........................................56
Section 3.1. Existence and Power..................................................................56
Section 3.2. Authority and No Violation...........................................................57
Section 3.3. Governmental Approval................................................................58
Section 3.4. Binding Agreements...................................................................58
Section 3.5. No Material Adverse Effect...........................................................58
Section 3.6. Financial Information................................................................59
Section 3.7. Loan Parties, Subsidiaries and Joint Ventures and Partnerships.......................60
Section 3.8. Patents, Trademarks, Copyrights and Other Rights.....................................60
Section 3.9. Title to Properties..................................................................61
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 3.10. Litigation; Judgments................................................................62
Section 3.11. Federal Reserve Regulations..........................................................62
Section 3.12. Investment Company Act...............................................................63
Section 3.13. Taxes................................................................................63
Section 3.14. Compliance with ERISA................................................................63
Section 3.15. Agreements...........................................................................64
Section 3.16. Disclosure...........................................................................64
Section 3.17. Environmental Matters................................................................65
Section 3.18. Compliance with Laws.................................................................66
Section 3.19. Real Property........................................................................66
Section 3.20. Mortgages............................................................................67
Section 3.21. Existing Loans; Existing Hedging Agreements..........................................67
Section 3.22. Organizational Documents.............................................................67
Section 3.23. Insurance............................................................................68
ARTICLE 4 CONDITIONS PRECEDENT TO THE ISSUANCE OF EACH LETTER OF CREDIT, AND TO CERTAIN
AMENDMENTS TO AN OUTSTANDING LETTER OF CREDIT.............................................68
ARTICLE 5 AFFIRMATIVE COVENANTS.....................................................................69
Section 5.1. Financial Statements and Other Information...........................................69
Section 5.2. Existence; Compliance with Laws......................................................74
Section 5.3. Maintenance of Properties............................................................74
Section 5.4. Notice of Material Events............................................................74
Section 5.5. Insurance............................................................................75
Section 5.6. Books and Records....................................................................76
Section 5.7. Observance of Agreements; Audit Rights...............................................77
Section 5.8. Taxes and Charges; Obligations in the Ordinary Course of Business....................77
Section 5.9. Environmental Laws...................................................................77
Section 5.10. Subsidiaries.........................................................................78
Section 5.11. Real Property Assets.................................................................79
Section 5.12. Further Assurances; Security Interests...............................................80
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 5.13. Liens................................................................................81
Section 5.14. Lender Meetings......................................................................81
Section 5.15. Use of Proceeds of Loans.............................................................81
Section 5.16. Deposit Accounts; Securities Accounts; Other.........................................81
ARTICLE 6 NEGATIVE COVENANTS........................................................................82
Section 6.1. Limitations on Indebtedness..........................................................82
Section 6.2. Limitations on Liens.................................................................85
Section 6.3. Limitation on Guaranties.............................................................88
Section 6.4. Limitations on Investments...........................................................89
Section 6.5. Restricted Payments; Certain Payments of Indebtedness; Disqualified Stock............91
Section 6.6. Merger, Sale of Assets, Purchases, etc...............................................92
Section 6.7. Sale Leaseback Transactions..........................................................95
Section 6.8. Limitation on Capital Expenditures...................................................95
Section 6.9. Minimum Consolidated EBITDA..........................................................96
Section 6.10. Minimum Gross Margin from the Voice Business.........................................97
Section 6.11. Fixed Charge Coverage Ratio..........................................................97
Section 6.12. Transactions with Affiliates.........................................................97
Section 6.13. Restrictive Agreements...............................................................98
Section 6.14. Amendment of Material Documents......................................................98
Section 6.15. Line of Business; Changes in Business................................................98
Section 6.16. Joint Ventures or Partnerships.......................................................99
Section 6.17. Receivables..........................................................................99
Section 6.18. ERISA Compliance.....................................................................99
Section 6.19. Hazardous Materials.................................................................100
Section 6.20. Use of Proceeds of Loans............................................................100
Section 6.21. Fiscal Year; Fiscal Quarter.........................................................100
Section 6.22. Deposit Accounts; Securities Accounts...............................................100
Section 6.23. Key Employee Retention Program; Other Programs for Senior Management................100
ARTICLE 7 EVENTS OF DEFAULT........................................................................101
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 8 GUARANTY.................................................................................105
Section 8.1. Guaranty............................................................................105
Section 8.2. No Impairment of Guaranty, etc......................................................106
Section 8.3. Continuation and Reinstatement, etc.................................................106
Section 8.4. Limitation on Guaranteed Amount, etc................................................107
Section 8.5. Stay of Acceleration................................................................107
ARTICLE 9 CASH COLLATERAL..........................................................................108
Section 9.1. Cash Collateral Account.............................................................108
Section 9.2. Investment of Funds.................................................................108
Section 9.3. Grant of Security Interest..........................................................108
Section 9.4. Remedies............................................................................109
ARTICLE 10 THE AGENTS AND THE ISSUING BANKS.........................................................109
Section 10.1. Administration by the Administrative Agent..........................................109
Section 10.2. Application of Proceeds.............................................................111
Section 10.3. Right of Set-Off; Sharing of Set-offs; Defaulting Lender............................112
Section 10.4. Notice to the Lenders...............................................................113
Section 10.5. Liability of the Administrative Agent, the Other Agents and the Issuing Banks.......113
Section 10.6. Reimbursement and Indemnification...................................................115
Section 10.7. Rights of the Agents and Issuing Banks..............................................115
Section 10.8. Independent Investigation by Lenders................................................116
Section 10.9. Delegation to Sub-Agents............................................................116
Section 10.10. Agreement of the Lenders............................................................116
Section 10.11. Notice of Transfer..................................................................116
Section 10.12. Relations Among Lenders.............................................................116
Section 10.13. Resignation of an Agent; Successor Administrative Agent.............................117
Section 10.14. Lender Payments.....................................................................117
Section 10.15. Syndication Agent and Co-Documentation Agents.......................................118
ARTICLE 11 MISCELLANEOUS............................................................................118
Section 11.1. Notices.............................................................................118
Section 11.2. Survival of Agreement, Representations and Warranties, etc..........................120
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 11.3. Successors and Assigns; Syndications; Loan Sales; Participations....................120
Section 11.4. Expenses; Documentary Taxes.........................................................125
Section 11.5. Indemnity...........................................................................126
Section 11.6. CHOICE OF LAW.......................................................................127
Section 11.7. WAIVER OF JURY TRIAL................................................................128
Section 11.8. WAIVER WITH RESPECT TO DAMAGES......................................................128
Section 11.9. No Waiver...........................................................................128
Section 11.10. Extension of Payment Date...........................................................129
Section 11.11. Amendments, etc.....................................................................129
Section 11.12. Severability........................................................................130
Section 11.13. SERVICE OF PROCESS..................................................................130
Section 11.14. Headings............................................................................131
Section 11.15. Execution in Counterparts...........................................................131
Section 11.16. Subordination of Intercompany Indebtedness, Receivables and Advances................132
Section 11.17. Confidentiality.....................................................................132
Section 11.18. Entire Agreement....................................................................133
Section 11.19. Enforcement of Rights; No Obligation to ▇▇▇▇▇▇▇▇ Assets.............................133
Section 11.20. Reproduction of Documents...........................................................133
Section 11.21. Acknowledgment by the Lenders with Regard to Hedging Agreements.....................133
Section 11.22. Change in GAAP......................................................................134
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Schedules
1 Schedule of Outstanding Loans and Revolving Letter of Credit
Commitments
1A Guarantors
3.1(a) List of jurisdictions where the Borrower is qualified
3.1(b) List of jurisdictions where Holdings is qualified
3.1(c) List of jurisdictions where Old WCG is qualified
3.1(d) List of jurisdictions where each Loan Party (other than the
Borrower, Holdings and Old WCG) is qualified
3.3(c) Governmental Approvals
3.5(a) Material Adverse Effects
3.7(a) Loan Parties and Subsidiaries of Loan Parties
3.7(b) Beneficial Interests in Persons other than a Loan Party or a
Subsidiary of a Loan Party
3.7(c) Joint Ventures and Partnerships in which a Loan Party is a general
or limited partner
3.8 Proprietary Rights
3.9(a) Title to Properties
3.10 Litigation
3.14(a) Reportable Events under ERISA
3.15 Material Agreements
3.17 Environmental Matters
3.19(a) Owned Real Property Assets (other than Rights of Way)
3.19(b) Leased Real Property Assets (other than Rights of Way)
3.21(b) Existing Hedging Agreements
6.1 Existing Indebtedness
6.2 Existing Liens
6.4 Existing Investments
6.4A Existing Cash Equivalent Investments to be replaced no later than
November 1, 2002
6.6(i) Non-Core Assets
6.12 Existing Affiliate Agreements
6.13 Restrictive Agreements
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Exhibits
A Form of L/C Certificate
B Form of Conversion/Continuation Certificate
C Form of Assignment and Acceptance
D Form of Contribution Agreement
E Form of Instrument of Assumption and Joinder
F Form of Excess Cash Flow Certificate
G Form of Note
H Form of Security Agreement
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SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT, dated as of
September 8, 1999, as amended and restated as of April 25, 2001, and as further
amended and restated as of October 15, 2002 (as this agreement may be further
amended, amended and restated, supplemented or otherwise modified, renewed or
replaced from time to time, the "Credit Agreement"), among (i) ▇▇▇▇▇▇▇▇
COMMUNICATIONS, LLC, a Delaware limited liability company (the "Borrower"); (ii)
the Guarantors referred to herein; (iii) the Lenders referred to herein; (iv)
BANK OF AMERICA, N.A., as administrative agent for the Lenders; (v) ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ BANK, (formerly known as The Chase Manhattan Bank), as syndication agent
for the Lenders; and (vi) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.,
each as co-documentation agent for the Lenders.
INTRODUCTORY STATEMENT
This Credit Agreement amends and restates in its entirety each of the
following agreements:
(i) that certain Amended and Restated Credit Agreement dated as of
September 8, 1999 among ▇▇▇▇▇▇▇▇ Communications, LLC, as
Borrower, ▇▇▇▇▇▇▇▇ Communications Group, Inc., as Guarantor,
the Lenders party thereto, Bank of America, N.A., as
Administrative Agent, The Chase Manhattan Bank (now known as
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, as Syndication Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. and ▇▇▇▇▇▇ Brothers, Inc., as Joint Lead Arrangers
and Joint Bookrunners with respect to the Incremental Facility
referred to therein and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., ▇▇▇▇▇▇
Brothers, Inc., and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc., as
Co-Documentation Agents (as such agreement has heretofore been
amended, the "Existing Credit Agreement"); and
(ii) that certain Subsidiary Guarantee dated as of September 8,
1999 entered into by those certain Subsidiaries of the
Borrower and/or Holdings that are a party thereto (as such
guarantee has heretofore been amended or supplemented, the
"Existing Subsidiary Guarantee)").
All terms not otherwise defined above or in this Introductory
Statement, are as defined in Article 1 hereof or as defined elsewhere herein.
As contemplated by that certain Plan of Reorganization (as such term is
defined in Amendment No. 9), the Existing Credit Agreement and the Existing
Subsidiary Guarantee (among other documents) are to be amended and restated. The
Borrower has requested that the Agents and the Required Lenders enter into
Amendment No. 9 to amend and restate the Existing Credit Agreement and the
Existing Subsidiary Guarantee as set forth in this Credit Agreement.
To provide assurance for the repayment of the Loans hereunder and the
other Obligations of the Borrower hereunder, the Borrower will, among other
things, provide or cause to be provided to the Administrative Agent, for the
benefit of the Secured Parties, the following (each as more fully described
herein):
(i) a guaranty of the Obligations by each of the Guarantors
pursuant to Article 8 hereof;
(ii) a security interest in the Collateral from each of the Loan
Parties pursuant to the Security Agreement; including, without
limitation, a pledge, of all the Equity Interests of the
Borrower and all the Equity Interests of the other Loan
Parties owned by a Loan Party; and
(iii) one or more Mortgages from the applicable Loan Parties with
respect to certain Real Property Assets.
Subject to the terms and conditions set forth herein, the
Administrative Agent is willing to act as administrative agent for the Lenders,
the Syndication Agent is willing to act as syndication agent for the Lenders,
each Co-Documentation Agent is willing to act as co-documentation agent for the
Lenders, each Issuing Bank is willing to issue Letters of Credit as provided
herein, each Lender is willing to continue and combine the outstanding loans
under the Existing Credit Agreement as provided herein, and the Revolving Letter
of Credit Lenders are willing to participate in Letters of Credit to the
Borrower as provided herein, in an aggregate amount at any one time outstanding
not in excess of such Revolving Letter of Credit Lender's Revolving Letter of
Credit Commitment hereunder.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
For the purposes hereof unless the context otherwise requires, all
references to Sections, Exhibits and Schedules shall be deemed references to
Sections of, and Exhibits and Schedules to, this Credit Agreement, the following
terms shall have the meanings set forth herein, all accounting terms not
otherwise defined herein shall have the respective meanings accorded to them
under GAAP, and all terms defined in the UCC and not otherwise defined herein
shall have the respective meanings accorded to them therein. Whenever the
context may require, any pronoun shall include the masculine, feminine and
neuter forms. Unless the context otherwise requires, any of the following terms
may be used in the singular or the plural, depending on the reference:
"Administration Fee Letter" shall mean that certain letter agreement
dated as of October 15, 2002 between the Borrower and the Administrative Agent
relating to the administration fees payable to the Administrative Agent, as such
agreement may be amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time.
"Administrative Agent" shall mean Bank of America, N.A., in its
capacity as administrative agent for the Lenders hereunder, or such successor
Administrative Agent as may be appointed pursuant to Section 10.13 hereof.
"Affiliate" shall mean with respect to any Person (including, without
limitation, a Loan Party), any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be "controlled by"
another Person if such latter Person possesses, directly or indirectly, either
(i) the power to vote 10% or more of any class of voting securities or other
equity interests of
2
such controlled Person or (ii) the power to direct or cause the direction of the
management and policies of such controlled Person whether by contract or
otherwise.
"Agents" shall mean, collectively, the Administrative Agent, the
Syndication Agent and each of the Co-Documentation Agents; provided, that the
term "Agents" shall not include any Agent (other than the Administrative Agent)
that has resigned in accordance with Section 10.13 hereof.
"Aircraft" shall mean (i) that certain Cessna model 750 Citation X
aircraft with manufacturer's serial number 750-0121 and United States
nationality and registration marks N358WC; and (ii) that certain Cessna model
560XL Citation Excel aircraft with manufacturer's serial number 560-5129 and
United States nationality and registration marks N359WC.
"Aircraft Lessor" shall have the meaning given to such term in the
definition of "Existing Sale Leaseback Transaction" set forth in this Article 1.
"Amendment No. 9" shall mean that certain Amendment No. 9 dated as of
October 15, 2002 to the Existing Credit Agreement.
"Amendment No. 9 Closing Date" shall mean October 15, 2002.
"Applicable Interest Margin" shall mean:
(i) in the case of Base Rate Loans, at any time prior to July 1,
2004, 3.50% per annum;
(ii) in the case of Base Rate Loans, at any time on or after July
1, 2004, 4.50% per annum;
(iii) in the case of Eurodollar Loans, at any time prior to July 1,
2004, 4.50% per annum; and
(iv) in the case of Eurodollar Loans, at any time on or after July
1, 2004, 5.50% per annum.
"Applicable Law" shall mean all provisions of statutes, rules,
regulations and orders of the United States, any state thereof or municipality
therein, or of any foreign governmental body, or of any regulatory agency, in
each case, applicable to the Person in question or any assets of such Person,
and all orders and decrees of all courts and arbitrators in proceedings or
actions in which the Person in question is a party or by which such Person or
any asset of such Person is bound.
"Approved Bank" shall have the meaning given to such term in the
definition of "Cash Equivalents" set forth in this Article 1.
"Assignment and Acceptance" shall mean an agreement substantially in
the form of Exhibit C hereto, executed by the assignor, the assignee and the
other parties as contemplated hereby or thereby.
3
"Australian Security Agreement" shall mean that certain First Equitable
Mortgage of Shares between CGA as "Mortgagor" thereunder in favor of the
Administrative Agent (for the benefit of the Secured Parties) as "Mortgagee", as
such agreement may be amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time.
"Authorized Officer" shall mean, with respect to the Borrower or any
Guarantor, the chief executive officer, president, vice president, chief
financial officer, chief accounting officer, secretary or treasurer of such
entity or of the managing member or general partner of such entity (if such
entity is a limited liability company or a partnership).
"Bank Credit Termination Date" shall mean the date on which (i) all of
the then outstanding Obligations have been paid in full in cash, (ii) the
Revolving Letter of Credit Commitments have been permanently terminated in their
entirety, (iii) all Letters of Credit shall have expired or been terminated or
canceled or the Borrower shall have obtained a letter of credit from an Approved
Bank for the benefit of each Issuing Bank in the face amount equal to 105% of
the current amount of such Issuing Bank's L/C Exposure, which letter of credit
shall be reasonably acceptable in all respects to such Issuing Bank, and (iv)
all Lender Hedging Agreements shall have expired or been terminated or canceled
or the related Hedging Obligations collateralized in a manner reasonably
satisfactory to the applicable Hedging Counterparty(ies).
"Bankruptcy Code" shall mean the Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, as codified at 11 U.S.C. Section 101 et seq.
"Base Rate" shall mean, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Rate in effect for such day plus 1/2 of 1%. For purposes hereof, "Prime Rate"
shall mean the rate of interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect at its principal office
in Dallas, Texas, which rate may not be the lowest rate of interest charged by
the Administrative Agent to its customers. "Federal Funds Rate" shall mean, for
any day, the rate per annum equal to the weighted average (rounded upwards, if
necessary, to the next 1/100th of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, on such day, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York; provided that if such rate is not so
published for any day that is a Business Day, the Federal Funds Rate for such
day shall be the average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rate quotations for such day for such transactions received by the
Administrative Agent from three (3) Federal funds brokers of recognized standing
selected by the Administrative Agent. If the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Federal Funds Rate for any reason, including
(without limitation) the inability or failure of the Administrative Agent to
obtain quotations in accordance with the terms hereof, the Base Rate shall be
determined without regard to clause (b) of the first sentence of this definition
until the circumstances giving rise to such inability no longer exist. Any
change in the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective from and including the effective date of such change in
the Prime Rate or the Federal Funds Rate, respectively.
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"Base Rate Loan" shall mean a Loan based on the Base Rate in accordance
with the provisions of Article 2 hereof.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" shall have the meaning given to such term in the initial
paragraph of this Credit Agreement.
"Borrowing" shall mean a group of Loans of a single Interest Rate Type
and as to which a single Interest Period is in effect on a single day.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which commercial banks are required or permitted to close in New
York, New York or Dallas, Texas; provided, however, that when used in connection
with a Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in Dollar deposits on the London Interbank
Market.
"Capital Expenditures" shall mean, with respect to any Person for any
period, the sum of (i) the aggregate amount of all expenditures by such Person
during that period which, in accordance with GAAP, are or should be included in
"additions to property, plant and equipment", "capital expenditures" or similar
items reflected in the statement of cash flows of such Person for such period,
and (ii) to the extent not covered by clause (i) hereof, the aggregate amount of
all expenditures in the reasonable judgment of such Person required to be
capitalized in accordance with GAAP by such Person to acquire, by purchase or
otherwise, the business, property or fixed assets of, or stock or other evidence
of beneficial ownership of, any other Person, including, without limitation,
IRUs.
"Capital Lease", as applied to any Person, shall mean any lease of (or
other arrangement conveying the right to use) any property (whether real,
personal or mixed) by that Person as lessee which, in accordance with GAAP, is
or is required to be accounted for as a capital lease on the balance sheet of
that Person.
"Cash Collateral Account" shall have the meaning given to such term in
Section 9.1 hereof.
"Cash Equivalents" shall mean (i) marketable securities issued, or
directly and fully guaranteed or insured, by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) in each case, having
a maturity of not more than twenty-four (24) months from the date of
acquisition; (ii) deposit accounts with any Lender, or a bank which has a
long-term debt rating of AA or better by S&P, or Aa or better by ▇▇▇▇▇'▇ (an
"Approved Bank") at the time of the initial deposit in the account; (iii) time
deposits, certificates of deposit, acceptances or prime commercial paper issued
by, or repurchase obligations for underlying securities of the types described
in clause (i) entered into with, an Approved Bank at the time acquired, issued
or entered into (as applicable and whichever is latest), in each case, having a
maturity of not more than twenty-four (24) months from the date of acquisition;
(iv) commercial paper with a rating of A-1 by S&P or P-1 by ▇▇▇▇▇'▇ and, in each
case, having a maturity of not more than twelve (12)
5
months from the date of acquisition; or (v) investments in money market funds
which invest primarily in the foregoing obligations.
"CGA" shall mean CG Austria, Inc., a Delaware corporation.
"CGI" shall mean CG Investment Company, LLC, a Delaware limited
liability company.
"Change in Control" shall mean the happening of any of the following:
(i) Holdings shall cease to own directly, 100% of the Equity
Interests of the Borrower; or
(ii) any event or series of events shall occur after the Amendment
No. 9 Closing Date, pursuant to, or by, which any "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and
any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan and
excluding any Permitted Investor) shall become the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group
shall be deemed to have "beneficial ownership" of all
securities that such person or group has the right to acquire
(such right, an "Option Right"), whether such right is
exercisable immediately or only after the passage of time),
directly or indirectly, of 35% or more of the Equity Interests
of Holdings entitled to vote for members of the Board of
Directors of Holdings, on a fully-diluted basis (and taking
into account all such Equity Interests that such "person" or
"group" has the right to acquire pursuant to any Option
Right); or
(iii) at any time, a majority of the members of the Board of
Directors of Holdings shall cease to be composed of
individuals (i) who were members of the Board of Directors of
Holdings on the Amendment No. 9 Closing Date, (ii) whose
election or nomination to the Board of Directors of Holdings
was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at
least a majority of the Board of Directors of Holdings or
(iii) whose election or nomination to the Board of Directors
of Holdings was approved by individuals referred to in clauses
(i) and (ii) above constituting at the time of such election
or nomination at least a majority of the Board of Directors of
Holdings.
"Co-Documentation Agent" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and/or
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., each in its capacity as a co-documentation agent for the
Lenders hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as heretofore and
hereafter amended, as codified at 26 U.S.C. Section 1 et seq., and the rules and
regulations promulgated thereunder, or any successor provision thereto.
"Collateral" shall have the meaning given to such term in the Security
Agreement.
6
"Commitment Fee" and "Commitment Fees" shall have the meanings given to
such terms in Section 2.7 hereof.
"Condemnation Event" shall mean any condemnation or other taking, or
temporary or permanent requisition of any property, any interest therein or
right appurtenant thereto, in each case as the result of the exercise of any
right of condemnation or eminent domain. A sale or other transfer to a
Governmental Authority in lieu of, or in anticipation of, condemnation shall be
deemed to be a Condemnation Event.
"Condemnation Proceeds" shall mean, with respect to any Condemnation
Event, all awards or payments received by a Loan Party by reason of such
Condemnation Event, including, without limitation, all amounts received with
respect to any transfer in lieu of, or in anticipation of, such Condemnation
Event or in settlement of any proceeding relating to such Condemnation Event;
but excluding any such award and other payment so received as and to the extent
that, pursuant to any lease, mortgage or other contractual obligation applicable
to such Loan Party and not prohibited by the terms and provisions of this Credit
Agreement, such Loan Party is contractually obligated (i) to pay such award or
other payment to a Person (other than a Loan Party or any of its Subsidiaries)
or (ii) to expend or apply such award or other payment (or allow another Person
to expend or apply) any such awards or other payments towards the cost of repair
or restoration of the affected property or asset.
"Consolidated Capital Expenditures" shall mean the Capital Expenditures
of Holdings, the Borrower and the other Loan Parties, determined on a
consolidated basis in accordance with GAAP.
"Consolidated EBITDA" shall mean, for any period, for Holdings, the
Borrower and the other Loan Parties on a consolidated basis, Consolidated Net
Income for such period, plus, without duplication, to the extent deducted in
computing Consolidated Net Income, the sum for such period of (i) amortization
and depreciation expense, (ii) Consolidated Interest Expense, (iii) federal,
state, local, foreign and other income tax expense, (iv) minority interest
losses, (v) the non-cash portion of any extraordinary after-tax losses or
charges (if any), (vi) any other non-cash losses or non-cash charges, and (vii)
solely for determining Consolidated EBITDA for any period which includes the
fiscal quarter ending September 30, 2002 or the fiscal quarter ending December
31, 2002, restructuring charges incurred in such quarter provided, that for
purposes of this definition, the aggregate amount of restructuring charges that
may be added back (whether such charges were incurred in the fiscal quarter
ending September 30, 2002 or the fiscal quarter ending December 31, 2002) shall
be capped at $100,000,000; and minus, without duplication, to the extent added
in computing Consolidated Net Income, the sum for such period of (a) any
interest income, (b) the non-cash portion of any extraordinary gains (if any),
(c) any gains from asset sales, other than managed services sales in the
ordinary course of business, (d) any benefit from income taxes during such
period, (e) minority interest gains, (f) any other non-cash income or non-cash
gains, and (g) the amortization of proceeds from the sale of lit fiber capacity
IRUs or dark fiber IRUs, all of the foregoing as determined for such period in
conformity with GAAP.
"Consolidated Interest Expense" shall mean, for any period, the gross
interest expense, whether paid or accrued (and including, without limitation,
the interest component of Capital
7
Lease obligations amortized during such period) of Holdings, the Borrower and
the other Loan Parties on a consolidated basis for such period, including,
without limitation or duplication, (a) interest expense in respect of the Loans
and all other outstanding Indebtedness, (b) amortization of the discount or
issuance cost of any Indebtedness (including, without limitation, any original
issue discount attributable to any issuance of debt securities), (c)
commissions, discounts and other fees and charges payable in connection with
letters of credit, (d) net expense in connection with all Interest Rate
Protection Agreements (including amortization of any discount), (e) non-cash
interest accruals and (f) preferred stock dividends and other distributions in
respect of preferred stock held by a Person other than Holdings, the Borrower or
one of the Borrower's wholly owned Subsidiaries which is a Loan Party, all as
determined in conformity with GAAP.
"Consolidated Net Income" shall mean, for any period for which such
amount is being determined, the net income or loss of Holdings, the Borrower and
the other Loan Parties, during such period determined on a consolidated basis
for such period taken as a single accounting period in accordance with GAAP,
provided, that there shall be excluded (i) the income (or loss) of any Person
(other than a Loan Party) in which Holdings or any of the other Loan Parties has
an equity investment or comparable interest, except to the extent of the amount
of dividends or other distributions actually paid to Holdings or any other Loan
Party by such Person during such period, and (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Loan Party or is merged into or
consolidated with Holdings or any other Loan Party or the Person's assets are
acquired by Holdings or any other Loan Party.
"Consolidated Subsidiaries" shall mean all Subsidiaries of a Person
which are required or permitted to be consolidated with such Person for
financial reporting purposes in accordance with GAAP.
"Contribution Agreement" shall mean the contribution agreement, in the
form of Exhibit D hereto executed by each of the Loan Parties, which agreement
shall provide for a right of contribution among the Guarantors and the Borrower
if any of the Guarantors is called upon to perform under its Guaranty hereunder,
as such agreement may be amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have correlative meanings.
"Control Agreement" shall have the meaning given to such term in the
Security Agreement.
"Controlled Deposit Account" shall have the meaning given to such term
in the Security Agreement.
"Controlled Securities Account" shall have the meaning given to such
term in the Security Agreement.
8
"Conversion/Continuation Certificate" shall mean a certificate
substantially in the form of Exhibit B hereto, to be delivered by the Borrower
to the Administrative Agent in connection with a continuation or a conversion of
a Loan pursuant to Section 2.11 hereof.
"Credit Agreement" shall have the meaning given to such term in the
initial paragraph of this agreement.
"Credit Exposure" shall mean, with respect to any Lender, an amount
equal to (i) the aggregate principal amount of outstanding Loans owed to such
Lender hereunder, plus (ii) such Lender's pro rata share of any L/C Exposure (if
applicable) based on its Revolving Letter of Credit Percentage, plus (iii) the
unused amount of the Revolving Letter of Credit Commitment of such Lender then
in effect.
"Currency Agreement" shall mean any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement designed to protect a Loan Party against fluctuations in
currency values or reduce the effect of any such fluctuations.
"Debtor Relief Laws" shall mean the Bankruptcy Code and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief laws of the United States of America or other
applicable jurisdictions from time to time in effect affecting the rights of
creditors generally.
"Declaration of Trust" shall mean the Declaration of Trust dated as of
October 15, 2002 among Holdings, Old WCG and Wilmington Trust Company, as
trustee, as such document may be amended, amended and restated, supplemented or
otherwise modified, renewed or replaced from time to time.
"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Lender" shall mean, at any time, any Lender which shall not
have theretofore made available to the Administrative Agent or an Issuing Bank,
as applicable, any amounts required to be made by such Lender hereunder or which
has otherwise failed to pay any obligation owing by such Lender pursuant to this
Credit Agreement or any other Loan Document.
"Deposit Account" shall have the meaning given to such term in the
Security Agreement.
"Disqualified Stock" shall mean, with respect to any Person, any Equity
Interest of such Person which, by its terms, or by the terms of any security
into which it is convertible or for which it is exchangeable or exercisable, or
upon the happening of any event (i) matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, (ii) is convertible,
exchangeable or exercisable for Indebtedness or any Equity Interest that would
constitute Disqualified Stock, or (iii) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to the first
anniversary of the Maturity Date.
9
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" shall mean a Subsidiary that is organized under
the laws of the United States of America, a State thereof, or the District of
Columbia.
"Eligible Assignee" shall mean (i) a Lender, (ii) an Affiliate of a
Lender, (iii) a Related Fund, (iv) a commercial bank having total assets in
excess of $1,500,000,000, or (v) a finance company, insurance company, savings
and loan association, savings bank, other financial institution, investing
company or fund, which in the case of any entity listed in this clause (v), is
acceptable to the Administrative Agent (such acceptance not to be unreasonably
withheld), and which in the ordinary course of its business extends or invests
in commercial loans and/or letter of credit facilities and whose becoming an
assignee would not constitute a prohibited transaction under Section 4975 of
ERISA.
"Environment" shall mean any environmental media, including, without
limitation, all surface or subsurface water, groundwater, water vapor, surface
or subsurface soil, geologic strata and formations, air, fish, wildlife,
microorganisms and all other natural resources.
"Environmental Claim" shall mean any and all administrative, statutory,
judicial or other actions, suits, orders, claims, inquiries, demands, liens,
notices, notices of violations, investigations, complaints, requests for
information, proceedings, or other communication (written or oral), whether
criminal or civil, pursuant to or relating to any applicable Environmental Law
by any Person (including, but not limited to, any Governmental Authority,
private person and citizens' group) based upon, alleging, asserting, or claiming
any actual or potential (i) violation of or liability under any Environmental
Law, (ii) violation of any Environmental Permit, or (iii) liability for
investigatory costs (including, without limitation, all studies, samplings and
testing), cleanup costs, monitoring costs, removal and abatement costs, remedial
costs, response costs, natural resource damages, damages, property damage,
personal injuries, fines, judgments, losses, expenses (including, without
limitation, any attorney or consultant fees and expenses, investigation expenses
and laboratory and litigation costs), or penalties, of whatever kind, known or
unknown, contingent or otherwise, which are threatened or asserted, arising out
of, based on, resulting from, or related to the presence, Release, or threatened
Release into the Environment, of any Hazardous Materials at any location,
including, but not limited to, any Premises or any location other than any
Premises to which Hazardous Materials or materials containing Hazardous
Materials were sent for handling, storage, treatment, or disposal by a Loan
Party or a Subsidiary of a Loan Party.
"Environmental Clean-up Site" shall mean any location which is listed
or proposed for listing on the National Priorities List, the Comprehensive
Environmental Response, Compensation and Liability Information System, or on any
similar state list of sites requiring investigation or cleanup, or which is the
subject of any Environmental Claim or other pending or threatened action, suit,
proceeding, monitoring or investigation related to or arising from any alleged
violation of any Environmental Law, or at which there has been a Release, or a
threatened or suspected Release of a Hazardous Material.
"Environmental Laws" shall mean any and all federal, state, local or
municipal or foreign laws, rules, orders, regulations, statutes, ordinances,
codes, policies, directives, common law
10
doctrines, decrees or requirements of any Governmental Authority regulating,
relating to, or imposing liability or standards of conduct concerning, any
Hazardous Material or environmental protection or health and safety, as now or
at any time hereafter in effect, including without limitation, the Clean Water
Act also known as the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C.
Section 1251 et seq., the Clean Air Act ("CAA"), 42 U.S.C. Sections 7401 et
seq., the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA"), 7 U.S.C.
Sections 136 et seq., the Surface Mining Control and Reclamation Act ("SMCRA"),
30 U.S.C. Sections 1201 et seq., the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the
Superfund Amendment and Reauthorization Act of 1986 ("▇▇▇▇"), Public Law 99-499,
100 Stat. 1613, Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801
et seq., Toxic Substances Control Act, 15 U.S.C. Sections 2601 et seq., the
Emergency Planning and Community Right to Know Act ("ECPCRKA"), 42 U.S.C.
Section 11001 et seq., the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 6901 et seq., the Occupational Safety and Health Act as amended
("OSHA"), 29 U.S.C. Section 651 et seq., together, in each case, with any
amendment thereto, and the rules and regulations adopted and promulgated
thereunder and all substitutions thereof.
"Environmental Permit" shall mean any federal, state, local,
provincial, or foreign permits, identification numbers, registrations, licenses,
orders, approvals, consents or authorizations (including, without limitation,
any filings or reports, notifications or assessments) required by any
Governmental Authority under or in connection with any Environmental Law and
shall include, without limitation, any and all orders, consent orders,
directives or binding agreements issued or entered into by a Governmental
Authority under any applicable Environmental Law.
"Equity Interests" shall mean with respect to any Person, (i) any and
all shares of capital stock (including, without limitation, preferred stock),
partnership interests, membership interests, beneficial interests in a trust or
any other equity ownership interest (as applicable) in such Person and (ii) any
and all warrants, options, participations, rights to purchase or other
equivalents, interests or similar rights (however designated) in or with respect
to any of the foregoing described in clause (i) applicable to such Person.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as heretofore and hereafter amended, as codified at 29 U.S.C. Section 1001 et
seq., and the rules and regulations promulgated thereunder, or any successor
provision thereto.
"ERISA Affiliate" shall mean each Person (as defined in Section 3(9) of
ERISA) which is treated as a single employer with any Loan Party under Section
414(b), (c), (m) or (o) of the Code.
"Escrow Agreement" shall mean that certain Escrow Agreement entered
into as of the 15th day of October, 2002 among Holdings, The ▇▇▇▇▇▇▇▇ Companies,
Inc., a Delaware corporation, Leucadia and The Bank of New York, as Escrow
Agent, as such agreement may be amended, supplemented, replaced or otherwise
modified from time to time in accordance with its terms.
11
"Escrow Release" shall mean the release of the Escrowed Property (as
defined in the Escrow Agreement) pursuant to, and in accordance with, paragraph
4 of the Escrow Agreement.
"Eurodollar Loan" shall mean a Loan based on the LIBO Rate in
accordance with the provisions of Article 2 hereof.
"Event of Default" shall have the meaning given to such term in Article
7 hereof.
"Excess Cash Flow" shall mean for any fiscal year (all as determined as
of December 31st of such year), an amount equal to (i) the aggregate amount of
cash and Cash Equivalents held on such date by Holdings, the Borrower and the
other Loan Parties (other than Old WCG), on a consolidated basis, minus (ii) an
amount equal to fifty percent (50%) of the amount by which Consolidated Capital
Expenditures permitted by Section 6.8(a) hereof for such fiscal year (pursuant
to the chart set forth in such Section 6.8(a) and without regard to any
carryover amount) exceeded the actual amount of Consolidated Capital
Expenditures made or incurred by the Loan Parties in such fiscal year; and minus
(iii) the applicable cash threshold set forth below for such fiscal year:
Fiscal Year Cash Threshold
----------- --------------
2002 $ 425,000,000
2003 $ 450,000,000
2004 $ 575,000,000
2005 $ 350,000,000
If the amount determined pursuant to the foregoing calculation for any
fiscal year is a negative number, then "Excess Cash Flow" for such fiscal year
shall be equal to zero (0).
"Existing Credit Agreement" shall have the meaning given to such term
in the Introductory Statement of this Credit Agreement.
"Existing International Joint Ventures" shall mean PowerTel, Silica
Networks, S.A. and Telefonica Manquehue, S.A.
"Existing Loans" shall mean all loans outstanding on the Amendment No.
9 Closing Date under the Existing Credit Agreement, regardless of whether such
loans are Term Loans or Incremental Term Loans (or Incremental Tranche A Term
Loans) (all such terms being used in this definition as defined in the Existing
Credit Agreement).
"Existing Sale Leaseback Transaction" shall mean the transactions
described in the Transaction Documents (as such term is defined in that certain
Intercreditor Agreement dated as of September 13, 2001 by and among WHBC, WTC,
▇▇▇▇▇▇▇▇ Communications Aircraft, LLC (the "Aircraft Lessor"), the Borrower, The
▇▇▇▇▇▇▇▇ Companies, Inc., the Administrative Agent and the Co-Arrangers (as
defined therein)), including, but not limited to: (i) the Master Lease
Agreement, as amended, dated as of September 13, 2001, among WHBC, WTC, the
Borrower
12
and Holdings, (ii) the Agreement of Purchase and Sale dated as of September 13,
2001, among WTC, as seller, WHBC, as purchaser, and the Borrower, as guarantor,
(iii) two (2) Aircraft Dry Leases numbered N358WC and N359WC, each dated as of
September 13, 2001, among the Aircraft Lessor and the Borrower, as lessee, and
(iv) the Guaranty dated as of September 13, 2001 of the Borrower in favor of
WHBC, in each case as such agreement, lease or guaranty may be amended, amended
and restated, supplemented or otherwise modified, renewed or replaced from time
to time.
"Existing Subsidiary Guarantee" shall have the meaning given to such
term in the Introductory Statement of this Credit Agreement.
"Federal Funds Rate" shall have the meaning given to such term in the
definition of "Base Rate" set forth in this Article 1.
"Financial Officer" shall mean the chief financial officer, principal
accounting officer, vice president of finance, treasurer or controller of
Holdings, the Borrower or other Loan Party, as the case may be.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic
Subsidiary.
"FTI" shall mean FTI Consulting and its predecessors and successors.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time, consistently applied
(except for accounting changes in response to FASB releases, or other
authoritative pronouncements); provided, however, that for purposes of
determining compliance with any financial covenant set forth in Article 6
hereof, GAAP shall mean generally accepted accounting principles in the United
States of America as in effect on the Amendment No. 9 Closing Date, applied on a
basis consistent with the application used in the financial statements referred
to in clause (a)(i) of Section 3.6 hereof.
"Governmental Authority" shall mean the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of, or pertaining to,
government.
"Guarantors" shall mean Holdings, Old WCG, those entities listed on
Schedule 1A hereto and any other direct or indirect Subsidiary of a Loan Party
acquired or created after the date hereof, which Subsidiary becomes a signatory
to this Credit Agreement as a Guarantor as required by Section 5.10 hereof.
"Guaranty" shall mean, as to any Person, any direct or indirect
obligation of such Person guaranteeing, intending to guarantee, or having the
economic effect of guaranteeing, or otherwise providing credit support for, any
Indebtedness, Capital Lease, dividend or other monetary obligation ("primary
obligation") of any other Person (the "primary obligor") in any manner, whether
directly or indirectly, by contract, as a general partner or otherwise,
including, without limitation, any obligation of such Person, whether or not
contingent, (a) to purchase or pay any such primary obligation or to purchase
any property constituting direct or indirect
13
security therefor, (b) to advance or supply funds (i) for the purchase or
payment of any such primary obligation or for the purchase of any property
constituting direct or indirect security or (ii) to maintain working capital or
equity capital or any other financial statement condition or liquidity of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, or (c) to purchase or lease property, securities or services
from the primary obligor or other Person, in each case, primarily for the
purpose of assuring the performance of the primary obligor of any such primary
obligation or assuring the owner of any such primary obligation of the repayment
of such primary obligation. The amount of any Guaranty shall be deemed to be an
amount equal to (x) the stated or determinable amount of the primary obligation
in respect of which such Guaranty is made (or, if the amount of such primary
obligation is not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder)) or (y) the stated maximum liability under such Guaranty, whichever
is less.
"Hazardous Materials" shall mean petroleum, petroleum hydrocarbons or
petroleum products, petroleum by-products, radioactive materials, asbestos or
asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea
formaldehyde, lead or lead-containing materials, polychlorinated biphenyls; and
any other chemicals, materials, pollutants, contaminants, substances or wastes
in any amount or concentration which are now or hereafter become defined as or
included in the definition of "hazardous substances," "hazardous materials,"
"hazardous wastes," "extremely hazardous wastes," "restricted hazardous wastes,"
"toxic substances," "toxic pollutants," "infectious waste," "pollutants,"
"regulated substances," "solid wastes," or "contaminants" or words of similar
import, under any Environmental Law.
"Hedging Agreement" shall mean any Interest Rate Protection Agreement
or Currency Agreement and shall include, without limitation, any Lender Hedging
Agreement.
"Hedging Counterparty" shall mean any Lender or affiliate of a Lender
which has entered into a Lender Hedging Agreement.
"Hedging Obligations" shall mean all the obligations of the Borrower
and/or the other Subsidiary Loan Parties to Hedging Counterparties under Lender
Hedging Agreements.
"Holdings" shall mean WilTel Communications Group, Inc., a Nevada
corporation.
"Indebtedness" shall mean (without duplication), at any time and with
respect to any Person, (i) indebtedness and/or other obligations of such Person
for borrowed money (whether by loan or the issuance and sale of debt
securities); (ii) obligations of such Person for the deferred purchase price of
property or services (other than amounts classified as current accounts payable
arising in the ordinary course of business and payable in accordance with
customary trading terms in the ordinary course of business not to exceed one
hundred eighty (180) days after the applicable account payable is accrued in
accordance with GAAP); (iii) all indebtedness of such Person evidenced by a
note, bond, debenture or similar instrument; (iv) indebtedness of others which
such Person has directly or indirectly assumed; (v) indebtedness of others
secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on assets of such Person,
whether or not such Person shall have assumed such indebtedness (provided, that
if such Person has not assumed such indebtedness of another
14
Person then the amount of indebtedness of such Person pursuant to this clause
(v) for purposes of this Credit Agreement shall be equal to the lesser of the
amount of the indebtedness of the other Person or the fair market value of the
assets of such Person which secures such other indebtedness); (vi) obligations,
contingent or otherwise of such Person in respect of letters of credit, letters
of guaranty, acceptance facilities, or drafts or similar instruments issued or
accepted by banks and other financial institutions for the account of such
Person; (vii) any Guaranty by such Person of any obligation of another Person
which obligation is of a type described in the other clauses of this definition
of "Indebtedness"; (viii) obligations of such Person under Capital Leases
(provided that obligations under any particular Capital Lease in respect of
fiber optic cable capacity arising in connection with an exchange of capacity
transaction shall constitute Indebtedness only to the extent of the amount of
such Person's liability in respect thereof net (but not less than zero) of such
Person's right to receive payments in connection with such exchange of capacity
transaction); (ix) all obligations of such Person under any Hedging Agreement or
Specified Security Hedging Transaction; and (x) deferred payment obligations of
such Person resulting from the adjudication or settlement of any litigation. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable
therefor. For purposes of this Credit Agreement, on any date of determination,
the Indebtedness in respect of a Hedging Agreement or a Specified Security
Hedging Transaction entered into by any Person shall be equal to the amount set
forth in such Person's financial records (maintained in accordance with GAAP)
for such Hedging Agreement or Specified Security Hedging Transaction, which
amount shall be the marked to market amount on the applicable determination
date.
"Indemnified Party" shall have the meaning given to such term in
Section 11.5 hereof.
"Initial Date" shall mean (i) in the case of Bank of America, N.A., in
its capacity as the Administrative Agent, an Issuing Bank and a Lender
hereunder, September 8, 1999; (ii) in the case of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, in its
capacity as the Syndication Agent, an Issuing Bank and a Lender hereunder,
September 8, 1999; (iii) in the case of each other Agent, the date on which it
became an Agent under the Existing Credit Agreement; (iv) in the case of each
Lender that was an original signatory to the Existing Credit Agreement,
September 8, 1999; and (v) in the case of each Lender that was not an original
signatory to the Existing Credit Agreement, the effective date of the Assignment
and Acceptance pursuant to which it became a Lender.
"Instrument of Assumption and Joinder" shall mean an Assumption and
Joinder Agreement substantially in the form of Exhibit E hereto.
"Intellectual Property" shall have the meaning given to such term in
the Security Agreement.
"Intellectual Property Security Agreement Supplement" shall have the
meaning given to such term in the Security Agreement.
15
"Intercreditor Agreement (Mortgaged Property)" shall mean that certain
Intercreditor and Subordination Agreement (Mortgaged Property) dated as of
October 15, 2002 by and between WHBC and the Administrative Agent, and consented
to by the Loan Parties as of the Amendment No. 9 Closing Date (as such agreement
may be amended, amended and restated, supplemented or otherwise modified,
renewed or replaced from time to time), relating to, among other things, the
subordination of the Liens of the Administrative Agent (for the benefit of the
Secured Parties) in the Mortgaged Property (as defined therein).
"Intercreditor Agreement (PowerTel Collateral)" shall mean that certain
Intercreditor and Subordination Agreement (PowerTel Collateral) dated as of
October 15, 2002 by and between WHBC and the Administrative Agent, and consented
to by the Loan Parties as of the Amendment No. 9 Closing Date (as such agreement
may be amended, amended and restated, supplemented or otherwise modified,
renewed or replaced from time to time), relating to, among other things, the
subordination of the Liens of WHBC in the Equity Interests of WilTel
Communications Pty. Limited owned by CGA and certain related collateral.
"Interest Deficit" shall have the meaning given to such term in Section
2.16 hereof.
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan, the
last Business Day of each month during each Interest Period with respect to such
Eurodollar Loan, and the last day of each such Interest Period, and (ii) as to
any Base Rate Loan, the last Business Day of each month and the date on which
such Base Rate Loan is converted to a Eurodollar Loan pursuant to, and in
accordance with, Section 2.11 hereof.
"Interest Period" shall mean as to any Eurodollar Loan, the period
commencing on the date such Loan is continued or converted or the last day of
the preceding Interest Period and ending on the numerically corresponding day
(or if there is no corresponding day, then the last day) in the calendar month
that is one, two or three months thereafter as the Borrower may elect; provided,
however, that (i) if any Interest Period would end on a day which shall not be a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day, unless such next succeeding Business Day would fall in the next
calendar month, in which case, such Interest Period shall end on the next
preceding Business Day, (ii) no Interest Period may be selected which would end
later than the Maturity Date, (iii) interest shall accrue from and including the
first day of such Interest Period to, but excluding, the last date of such
Interest Period, and (iv) no Interest Period may be selected which would result
in the aggregate amount of Eurodollar Loans having Interest Periods ending after
any date on which an installment of principal of the Loans is scheduled to
mature, being in excess of the aggregate principal installments scheduled to
mature after such date.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, synthetic cap, collar or floor or other
financial agreement or arrangement designed to protect a Loan Party against
fluctuations in interest rates or to reduce the effect of any such fluctuations.
"Interest Rate Type" shall have the meaning given to such term in
Section 2.2 hereof.
16
"Investment" shall mean any Equity Interest of any Person, any loan,
advance, evidence of Indebtedness, contribution of capital, extension of credit
or commitment therefor (including, without limitation, the Guaranty of loans
made to others and Guaranties of other obligations, but excluding any current
trade or customer account receivable for goods sold or services provided and
arising in the ordinary course of business and payable in accordance with
customary trading terms in the ordinary course of business, not to exceed one
hundred eighty (180) days after the date the applicable receivable is accrued in
accordance with GAAP), any investment or other interest in any Person, any
purchase or other acquisition of (i) any Equity Interest of another Person or
(ii) a line of business, or all or substantially all of the assets, of any
Person or any commitment to make any such purchase or acquisition.
"IRU" shall mean (i) an indefeasible right of use with respect to dark
fiber or lit fiber capacity, or (ii) any other transaction in which a Person
(the "Purchasing Entity") obtains the right to use telecommunications network
assets or capacity of any type from another Person (the "Selling Entity") and
the asset that is the subject to such transaction (upon consummation of the
transaction) becomes an asset of the Purchasing Entity and ceases to be an asset
of the Selling Entity for financial reporting purposes in accordance with GAAP.
"Issuing Bank" shall mean each of Bank of America, N.A. and/or ▇▇
▇▇▇▇▇▇ Chase Bank, each in its capacity as an issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.4(l)
hereof. Each such Issuing Bank may, in its discretion, arrange for Letters of
Credit to be issued by an affiliate of the Issuing Bank, in which case, the term
"Issuing Bank" shall include, with respect to Letters of Credit issued by such
affiliate, such affiliate.
"Joint Venture" shall mean any Person (other than a wholly owned
Subsidiary of a Loan Party) in which an Equity Interest is, at the time any
determination is being made, owned or controlled by a Loan Party as permitted by
this Credit Agreement.
"Key Employee Retention Program" shall mean the program established by
Old WCG and the Borrower for the retention, stay, severance or similar employee
benefit for, or related to, the senior executives and other specified employees,
in order to accommodate, motivate and create appropriate incentives for such
executives and such other specified employees to complete the Chapter 11
Reorganization of Old WCG and to retain key executives and employees who remain
in the employ of the Borrower through the restructuring, as such program was
amended as of July 26, 2002, or is hereafter amended in accordance with the
terms and provisions of this Credit Agreement.
"L/C Cash Collateral Account" shall mean Account No. 12331-10471 styled
"BOA, NA LC Collateral Acct under the ▇▇▇▇▇▇▇▇ Communications LLC Agrmt" or any
other account hereafter designated by the Borrower and the Administrative Agent
as an "LC Collateral Account" related to this Credit Agreement, in any case,
which account shall be in the name and under the sole dominion and control of
the Administrative Agent and shall be maintained with the Administrative Agent
(for the benefit of the Secured Parties).
"L/C Certificate" shall mean a certificate, substantially in the form
of Exhibit A hereto, to be delivered by the Borrower to the Administrative Agent
in connection with the issuance of
17
each Letter of Credit or the amendment, renewal or extension of any outstanding
Letter of Credit (as applicable).
"L/C Disbursements" shall have the meaning given to such term in
Section 2.17(b) hereof.
"L/C Exposure" shall mean, at any time, the amount expressed in Dollars
of the aggregate face amount of all drafts which may then or thereafter be
presented by beneficiaries under all Letters of Credit then outstanding plus
(without duplication), the face amount of all drafts which have been presented
or accepted under all Letters of Credit but have not yet been paid, or have been
paid, but not reimbursed. The L/C Exposure of any Revolving Letter of Credit
Lender at any time shall be such Revolving Letter of Credit Lender's Revolving
Letter of Credit Percentage of the total L/C Exposure at such time.
"Lender" and "Lenders" shall mean the Persons whose names appear in the
signature pages of Amendment No. 9 and any assignee of a Lender pursuant to
Section 11.3 hereof, and their respective successors.
"Lender Hedging Agreement" shall mean a Hedging Agreement entered into
by and between a Lender (or an affiliate of a Lender) and the Borrower or a
Subsidiary Loan Party.
"Lending Office" shall mean, with respect to any Lender, the branch or
branches (or affiliate or affiliates) from which such Lender's Eurodollar Loans
or Base Rate Loans, as the case may be, are made or maintained, and for the
account of which all payments of principal of, and interest on, such Lender's
Eurodollar Loans or Base Rate Loans are made, as notified by such Lender to the
Administrative Agent from time to time.
"Letter of Credit" shall mean a standby letter of credit issued by an
Issuing Bank pursuant to Section 2.4 hereof.
"Letter of Credit Fees" shall mean the fees payable in respect of
Letters of Credit pursuant to Section 2.4 hereof.
"Leucadia" shall mean Leucadia National Corporation, a New York
corporation.
"LIBO Rate" shall mean, with respect to any Eurodollar Loan for any
Interest Period, an interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) equal to (a) the LIBO Base Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
As used in this definition, the term "LIBO Base Rate" shall mean, for
such Interest Period:
(x) the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page
of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of
interest rates applicable to Dollar deposits in the London
interbank market) at approximately 11:00 a.m., London time,
two
18
Business Days prior to the commencement of such Interest
Period, as the rate for Dollar deposits with a maturity
comparable to such Interest Period; or
(y) in the event that such rate is not available at such time for
any reason, the rate (rounded upwards, if necessary, to the
next 1/16 of 1%) at which Dollar deposits of $5,000,000 and
for a maturity comparable to such Interest Period are offered
by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period.
As used in this definition, the term "Statutory Reserve Rate" shall
mean, for any day during such Interest Period, a fraction (expressed as
a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the
maximum reserve percentages in effect on such day (including any
marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board to which the Administrative Agent is
subject with respect to the LIBO Rate or a eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under
such Regulation D or any comparable regulation. The Statutory Reserve
Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Lien" shall mean any mortgage, deed of trust, hypothecation, pledge,
security interest, encumbrance, lien or charge of any kind whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any lease in the nature of security, and with respect to any equity
interest or other security, any purchase option, call or similar right of a
third party with respect to such equity interest or other security).
"Loan Documents" shall mean (i) this Credit Agreement, (ii) any Note,
(iii) any Letter of Credit, (iv) any Mortgage (including, without limitation,
the Second Mortgage), (v) the Security Agreement, (vi) any Securities Account
Control Agreement, any Deposit Account Control Agreement, any Issuer Control
Agreement, the Patent Security Agreement, the Trademark Security Agreement, the
Copyright Security Agreement, and any Intellectual Property Security Agreement
Supplement (as each of the foregoing terms listed in this clause (vi) is defined
in the Security Agreement), (vii) any Instrument of Assumption and Joinder,
(viii) the Australian Security Agreement, (ix) any other documents or agreements
delivered by a Loan Party to the Administrative Agent granting or purporting to
grant to the Administrative Agent (on behalf of one or more Secured Parties) a
Lien on any property of any Person to secure any of the Obligations or any
guarantee of any of the Obligations, (x) the Intercreditor Agreement (PowerTel
Collateral) and the Intercreditor Agreement (Mortgaged Property), (xi) the
Contribution Agreement, (xii) the Administration Fee Letter, (xiii) any
agreement which is required to be or is otherwise executed on or prior to the
Amendment No. 9 Closing Date by any Loan Party in connection with the
effectiveness of this Credit Agreement or any of the
19
documents listed above (including, without limitation, Amendment No. 9), and
(xiv) any other document, agreement or instrument which is required to be or is
otherwise executed after the Amendment No. 9 Closing Date by any Loan Party in
connection with this Credit Agreement or any of the documents listed above and
which is expressly designated as a "Loan Document".
"Loan Party" shall mean the Borrower, Holdings, Old WCG or any
Subsidiary Loan Party, as applicable, and "Loan Parties" shall mean
collectively, the Borrower, Holdings, Old WCG and the Subsidiary Loan Parties
hereunder.
"Loans" shall have the meaning given to such term in Section 2.1
hereof.
"Margin Stock" shall be as defined in Regulation U of the Board.
"Material Adverse Effect" shall mean any event, development, condition
or circumstance that (a) has a material adverse effect on the business, assets,
properties, performance, operations or condition (financial or otherwise) of
Holdings and its Subsidiaries taken as a whole, of the Loan Parties taken as a
whole, or of the Borrower, (b) materially impairs the ability of Holdings, the
Borrower or any other Loan Party to perform any of its respective material
obligations under any Loan Document to which it is or will be a party, (c)
materially and adversely affects the rights or remedies of, or benefits
available to, the Administrative Agent, the Lenders or any other Secured Party,
under any Loan Document, or (d) materially and adversely affects the Liens
granted to the Administrative Agent (for the benefit of Secured Parties) or
materially impairs the validity or enforceability thereof in either case with
respect to a material portion of the Collateral or the Mortgaged Real Property
Assets; provided, however, that any event, development, condition or
circumstance will be deemed to have a "Material Adverse Effect" if such event,
development, condition or circumstance when taken together with all other
events, developments, conditions and circumstances occurring or in existence at
such time (including all other events, developments, conditions and
circumstances which, but for the fact that a representation, warranty or
covenant is subject to a "Material Adverse Effect" exception, would cause such
representation or warranty contained herein to be untrue or such covenant to be
breached) would result in a "Material Adverse Effect", even though,
individually, such event, development, condition or condition would not do so.
"Material Agreement" shall mean (a) each agreement listed in subpart
(iii) of Schedule 3.15 hereto, (b) any agreement entered into by a Loan Party
that evidences, governs or secures Material Indebtedness of such Loan Party, and
(c) any other agreement entered into by a Loan Party that (i) evidences a firm
revenue commitment to one or more Loan Parties to make payments to any such Loan
Parties in excess of $50,000,000 during any fiscal year of such Loan Party prior
to the Maturity Date, (ii) the breach or termination of which by any Loan Party
could reasonably be expected to result in liabilities of, or damages payable by,
any Loan Party in excess of $25,000,000 during any fiscal year of such Loan
Party prior to the Maturity Date, or (iii) the breach or termination of which
could reasonably be expected to be a Material Adverse Effect.
"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit) of any one or more of the Loan Parties and/or
Subsidiaries of a Loan Party in an aggregate principal amount exceeding
$15,000,000.
20
"Maturity Date" shall mean September 8, 2006.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. or if such company
shall cease to issue ratings, another nationally recognized statistical rating
company selected in good faith by mutual agreement of the Administrative Agent
and the Borrower.
"Mortgage" shall mean any mortgage, deed of trust, deed to secure debt
or such equivalent document now existing or hereafter entered into, that is
executed and delivered by one or more of the Loan Parties to the Administrative
Agent (for the benefit of the Secured Parties) and in each case, as such
document may be amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time. The term "Mortgage" shall
include, without limitation, the Second Mortgage.
"Mortgageable Leased Property/Right of Way" shall have the meaning
given to such term in Section 5.11(a) hereof.
"Mortgaged Real Property Assets" shall mean those Real Property Assets
of the Loan Parties on which a Lien has been granted (and has not been released
or terminated pursuant to, and in accordance with, the terms of the Loan
Documents) by the applicable Loan Parties to the Administrative Agent (for the
benefit of the Secured Parties).
"Multiemployer Plan" shall mean a plan described in Section 4001(a)(3)
of ERISA to which any Loan Party or ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the five preceding plan
years, made or accrued an obligation to make contributions.
"Net Cash Proceeds" shall mean (a) the aggregate cash proceeds received
by a Loan Party (including, without limitation, as applicable, all cash proceeds
received by way of (i) deferred payment of principal pursuant to a note or
installment receivable or otherwise, but only as and when received, (ii) any
cash received in respect of any non-cash proceeds, but only as and when received
and (iii) cash payments received in respect of receivables retained by a Loan
Party as part of any sales consideration, but only as and when received), minus
(b) reasonable and customary brokerage commissions, underwriting discounts and
other reasonable and customary fees and direct expenses (including reasonable
and customary fees and expenses of counsel, accountants, financial advisors and
investment bankers actually paid by the applicable Loan Party) paid by a Loan
Party to third parties (other than Affiliates) related to such transaction,
minus (c) to the extent applicable, with respect to any sale or other
disposition of assets permitted hereunder, payments made to retire Indebtedness
(other than the Loans) secured by a Lien on any assets being sold or otherwise
disposed of where payment of such Indebtedness is required in connection with
such sale or disposition, minus (d) any income, franchise, transfer or other tax
liability of any Loan Party arising from the applicable transaction; provided,
that such taxes are payable in cash in the current year or in the next
succeeding year with respect to the current year as a direct result of the
applicable transaction, and minus (e) to the extent applicable, with respect to
any sale or other disposition of assets permitted hereunder, reasonable reserves
for customary indemnity obligations and purchase price adjustments.
21
"Network Segment" means (i) with respect to the Borrower's and the
Subsidiary Loan Parties' intercity network, the through-portion of such network
between two local networks and (ii) with respect to a local network of the
Borrower and the Subsidiary Loan Parties, the entire through-portion of such
network, excluding the spurs which branch off the through-portion.
"Non-Core Assets" means those assets listed on Schedule 6.6(i) hereto.
"Note" shall have the meaning given to such term in Section 2.5(h)
hereof.
"NPV Amount" shall mean, with respect to any lease and at any date at
which the amount thereof is to be determined, an amount equal to the present
values (discounted, in the case of payments which are not due and payable within
twelve (12) months following the date of determination, on a quarterly basis by
a rate of interest equal to 4% per annum) of all fixed or specified rental
payments which are contractually obligated to be paid by any Loan Party pursuant
to the applicable lease.
"Obligations" shall mean:
(a) all obligations whether, direct or indirect, contingent or
absolute, of every type or description and at any time existing, of the Borrower
or any other Loan Party to make due and punctual payment of (i) principal of,
and all interest on, the Loans, the Commitment Fees, the Letter of Credit Fees,
reimbursement obligations in respect of Letters of Credit, costs and attorneys'
fees and all other monetary obligations of the Borrower to any of the Agents,
any Issuing Bank or any Lender under or in respect of this Credit Agreement, any
Note, any other Loan Document or the Administration Fee Letter (including,
without limitation, interest accruing at the then applicable rate provided in
this Credit Agreement after the maturity of any of the Loans, and Post-Petition
Interest accruing or payable at the then applicable rate provided for in this
Credit Agreement) and (ii) any and all Hedging Obligations (including, without
limitation, a conditional obligation to make a future payment under an
outstanding Lender Hedging Agreement) provided that in the case of any Hedging
Obligation, (x) the Borrower and/or Subsidiary Loan Party (as applicable) shall
have been permitted to enter into the applicable Lender Hedging Agreement
pursuant to this Credit Agreement and (y) the Administrative Agent shall have
received written notice of the applicable Lender Hedging Agreement (1) in the
case of a Lender Hedging Agreement in existence on the Amendment No. 9 Closing
Date, within ten (10) Business Days after the Amendment No. 9 Closing Date and
(2) in the case of any Lender Hedging Agreement entered into after the Amendment
No. 9 Closing Date, within ten (10) Business Days after the execution of such
Lender Hedging Agreement; and
(b) all other obligations of the Borrower or any other Loan Party
pursuant to this Credit Agreement or any other Loan Document.
"Old WCG" shall mean ▇▇▇▇▇▇▇▇ Communications Group, Inc., a Delaware
corporation.
"Option Right" shall have the meaning given to such term in the
definition of "Change in Control" set forth in this Article 1.
"OTC Documents" shall mean, collectively, the OTC Notes, the OTC
Mortgage, the OTC Pledge Agreements and the OTC Purchase and Sale Agreement.
22
"OTC Mortgage" shall mean the Mortgage With Power of Sale, Security
Agreement, Assignment of Leases, Rents and Profits, Financing Statement and
Fixture Filing dated as of October 15, 2002 by WTC in favor of WHBC, as such
document may be amended, restated, renewed, replaced, restructured, supplemented
or otherwise modified from time to time.
"OTC Notes" shall mean the promissory notes issued by WTC, Holdings and
the Borrower, as "makers" to WHBC each dated October 15, 2002 in the original
principal amount of $100,000,000 and $44,800,000 (such principal amount is
subject to increase by reason of the accretion of interest on such note to the
maturity date thereof, provided that the maximum principal amount of such note
shall not exceed $74,360,295.30 prior to the maturity date thereof),
respectively, as such notes may be amended, restated, renewed, replaced,
restructured, supplemented or otherwise modified from time to time.
"OTC Pledge Agreements" shall mean (i) that certain Pledge Agreement
dated as of October 15, 2002 made by CGA to WHBC; and (ii) that certain Second
Equitable Mortgage of Shares between CGA as "Mortgagor" thereunder in favor of
WHBC as "Mortgagee", in each case, as either such agreement may be amended,
restated, replaced, restructured, supplemented or otherwise modified from time
to time.
"OTC Purchase and Sale Agreement" means the Real Property Purchase and
Sale Agreement dated as of July 26, 2002, among WHBC, as "Seller", WTC as
"Purchaser", the Borrower, Holdings and ▇▇▇▇▇▇▇▇ Aircraft Leasing, LLC, a
Delaware limited liability company, as amended by that certain First Amendment
to the Real Property Purchase and Sale Agreement thereto dated as of October 15,
2002, by and among The ▇▇▇▇▇▇▇▇ Companies, Inc., WHBC, WTC, the Borrower,
Holdings, ▇▇▇▇▇▇▇▇ Aircraft Leasing, LLC and ▇▇▇▇▇▇▇▇ Aircraft, Inc., a Delaware
corporation, as such agreement may be further amended, restated, supplemented or
otherwise modified from time to time.
"OTC Real Property Assets" shall mean the Real Property Assets subject
to the OTC Mortgage as escrowed pursuant to the Escrow Agreement or if
applicable, as such document has been amended, restated, renewed, replaced,
restructured, supplemented or otherwise modified in accordance with the terms of
this Credit Agreement.
"Participation Agreement" shall have the meaning given to such term in
Section 11.3(g) hereof.
"Participant Register" shall have the meaning given to such term in
Section 11.3(g) hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"Percentage" shall mean with respect to any Lender, the percentage of
the Total Credit Exposure represented by such Lender's Credit Exposure.
"Perfection Certificate" shall mean a certificate in the form of
Exhibit B to the Security Agreement.
"Permitted Encumbrances" shall mean Liens permitted under Section 6.2
hereof.
23
"Permitted Holdings Activities" shall mean, with respect to Holdings,
(i) the acquisition from the Borrower and the ownership of certain real property
located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and the lease/sublease
of one or more portions of such real property to the Borrower, a Subsidiary Loan
Party or an unaffiliated third party and the receipt of rental and other
payments associated therewith, subject to the provisions of Section 6.15(b)(ii)
hereof; (ii) the lease or acquisition of furniture and equipment by Holdings in
Nevada necessary to maintain a place or places of business; (iii) the management
of the real and personal property described in clauses (i) and (ii) above and
retention of associated services and utilities; (iv) the employment or
engagement of all necessary staff and other administrative personnel for the
management of such real and personal property described in clauses (i) and (ii)
above; (v) the acquisition and ownership of any Proprietary Right and the
license of all or any portion thereof to the Borrower, a Subsidiary of a Loan
Party or a third party and the receipt of royalties, fees or other payments
associated therewith, subject to the provisions of Section 6.15(b)(ii) hereof;
(vi) the establishment of one or more Deposit Accounts which shall be Controlled
Deposit Accounts except as otherwise permitted by Section 5.16 hereof; (vii)
activities that Holdings must perform under applicable law, any applicable
securities exchange regulations or in order to protect, register, maintain or
extend any Proprietary Rights; and (viii) such other activities as are
necessary, in the opinion of the Borrower, for maintaining a place of business
in Nevada.
"Permitted Investor" shall mean so long as the unwind has not occurred
as contemplated by paragraph 5 of the Escrow Agreement, Leucadia and any of its
affiliates.
"Permitted Strategic Disposition" shall mean the disposition by the
Borrower or any other Loan Party of the assets described in the Strategic Asset
Disposition Letter.
"Permitted Telecommunications Asset Disposition" shall mean the sale,
transfer, lease or other disposition of or an interest in (including, without
limitation, pursuant to a dark fiber IRU):
(A) optical fiber cable and/or conduit (and any related equipment,
technology or software not then used in a Network Segment of the
Borrower's and/or the Subsidiary Loan Parties' communications network);
provided, that after giving effect to such sale, transfer, lease or
disposition, the Borrower and the Subsidiary Loan Parties would retain
the right to use at least the minimum retained capacity set forth
below:
(i) with respect to any Network Segment constructed by, for or on
behalf of, the Borrower or any Subsidiary or Affiliate, either
(x) 24 optical fibers per route mile on such Network Segment
as deployed at the time of the applicable Permitted
Telecommunications Asset Disposition or (y) 12 optical fibers
and one empty conduit per route mile on such Network Segment
as deployed at the time of the applicable Permitted
Telecommunications Asset Disposition; and
(ii) with respect to any Network Segment purchased or leased from
third parties, the lesser of (x) 50% of the optical fibers per
route mile originally purchased or leased on such Network
Segment, (y) 24 optical fibers per route mile on such Network
Segment as deployed at the time of the applicable Permitted
Telecommunications Asset Disposition and (z) 12 optical fibers
and one empty
24
conduit per route mile on such Network Segment as deployed at the time
of the applicable Permitted Telecommunications Asset Disposition; or
(B) a single strand fiber used in a Network Segment of the Borrower's
and/or the Subsidiary Loan Parties' communications network; provided,
that after giving effect to such disposition, the Borrower and the
Subsidiary Loan Parties would not eliminate all capacity between the
endpoint cities connected by any fiber of the Borrower and/or the
Subsidiary Loan Parties.
"Person" shall mean any natural person, corporation, partnership,
limited liability partnership, limited liability company, trust, joint venture,
association, company, estate, unincorporated organization or government or any
agency or political subdivision thereof.
"Plan" shall mean an employee pension benefit plan within the meaning
of Section 3(2) of ERISA, other than a Multiemployer Plan, maintained or
contributed to by any Loan Party or any ERISA Affiliate, or otherwise pursuant
to which any Loan Party could have liability.
"Pledged Collateral" shall have the meaning given to such term in the
Security Agreement.
"Pledgor" shall mean any Loan Party that has any right, title, or
interest in and to any Pledged Collateral.
"Post-Petition Interest" shall mean interest accruing after the filing
of any petition in bankruptcy, or the commencement of any case, proceeding or
action relating to the bankruptcy, reorganization or insolvency of the Borrower
or any other Loan Party (or interest that would accrue but for the operation of
applicable bankruptcy, reorganization or insolvency laws), whether or not a
claim for post-filing or post-petition interest is allowed or allowable as a
claim in any such case, proceeding or action.
"PowerTel" shall mean PowerTel, Limited, an Australian corporation.
"Premises" shall mean any real property currently or formerly owned,
leased or operated by any Loan Party or any Subsidiary of any Loan Party,
including, but not limited to, all soil, surface water, or groundwater thereat.
"Prepayment Date" shall have the meaning given to such term in Section
2.9(l) hereof.
"Prime Rate" shall have the meaning given to such term in the
definition of "Base Rate" set forth in this Article 1.
"Proprietary Rights" shall have the meaning given to such term in
Section 3.8 hereof.
"Purchasing Lender" shall have the meaning given to such term in
Section 2.13(e).
"Real Property Assets" shall mean as of any time, (i) all parcels of
real property, owned or leased at such time directly or indirectly by any Loan
Party, together with in each case, all buildings, improvements, appurtenant
fixtures, and easements and other property and rights
25
incidental to the ownership or lease (as applicable) of such parcel of real
property or any of the foregoing and (ii) all Rights of Way.
"Recovery Event" means (a) the receipt of any Condemnation Proceeds in
excess, for any single event, of $1,000,000, or (b) the receipt of proceeds of
any insurance (other than business interruption insurance) required to be
maintained pursuant to this Credit Agreement or any other Loan Document on
account of each separate loss, damage or injury in excess of $1,000,000 to any
tangible property of the Borrower or any other Loan Party.
"Register" shall have the meaning given to such term in Section
11.3(e).
"Regulation D" shall mean Regulation D of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Related Fund" shall mean, with respect to any Lender that is a fund
that invests in the type of credit extended hereunder, any other fund that (i)
invests in such type of credit and (ii) is advised or managed by the same
investment advisor as such Lender or by an Affiliate of such investment advisor
for a period of not less than 120 days immediately prior to the proposed
assignment to such fund hereunder.
"Related Parties" shall mean, with respect to any Person, such Person's
affiliates and the respective directors, officers, employees, representatives,
trustees, agents, advisors (including, without limitation, investment advisors)
of, and any professionals retained by, such Person or such Person's affiliates.
"Release" shall mean any discharging, disposing, emitting, leaking,
pumping, pouring, emptying, injecting, escaping, leaching, dumping or spilling
of any Hazardous Material through, on, above, under or into the Environment.
"Reportable Event" shall mean any reportable event as defined in
Section 4043(c) of ERISA.
"Required Lenders" shall mean at any time, Lenders having aggregate
Credit Exposure representing more than fifty percent (50%) of the Total Credit
Exposure at such time.
"Required Revolving Lenders" shall mean at any time, (i) Revolving
Letter of Credit Lenders having L/C Exposure representing more than fifty
percent (50%) of the total L/C Exposure then outstanding or (ii) if no Letters
of Credit are then outstanding, Revolving Letter of Credit Lenders having
aggregate Revolving Letter of Credit Commitments representing more than fifty
percent (50%) of the Total Revolving Letter of Credit Commitment.
"Requirements" shall mean all present and future laws, statutes, codes,
ordinances, orders, judgments, decrees, injunctions, directives, rules,
regulations and requirements of every Governmental Authority having jurisdiction
over any Real Property Asset and all restrictive covenants applicable to any
Real Property Asset.
26
"Restricted Payment" shall mean (i) any distribution, dividend or other
direct or indirect payment (whether in cash, securities or other property) on
account of shares of any class of stock of, partnership interest in, or any
other Equity Interest of, a Loan Party or any Subsidiary or Affiliate of a Loan
Party, (ii) any purchase, redemption or other acquisition, re-acquisition or
retirement, cancellation or termination by a Loan Party of any shares of any
class of its own capital stock or any of its other Equity Interest(s) (as
applicable) or Equity Interest(s) of another Loan Party or any Affiliate, now or
hereafter outstanding, (iii) any payment (whether in cash, securities or other
property) made to retire, or obtain the surrender of, any outstanding warrants,
puts or options or other rights to purchase or otherwise acquire shares of any
class of stock of, or any other Equity Interest in, a Loan Party or any
Subsidiary or other Affiliate of a Loan Party, now or hereafter outstanding,
(iv) any payment by a Loan Party of principal of, premium, if any, or interest
on, or any redemption, purchase, retirement, defeasance, sinking fund or similar
payment with respect to, any Indebtedness now or hereafter outstanding which
Indebtedness is subordinated to any of the Obligations, and (v) any other
transaction the economic effect of which is similar to any of the transactions
described in the foregoing clauses (i) through (iv).
"Revolving Letter of Credit Commitment" shall mean with respect to a
Lender, the commitment, if any, of such Lender to participate in Letters of
Credit hereunder through the Revolving Letter of Credit Commitment Termination
Date up to an aggregate amount, at any one time, not in excess of the amount set
forth (i) opposite such Lender's name under the column entitled "Revolving
Letter of Credit Commitment" in the Schedule of Outstanding Loans and Revolving
Letter of Credit Commitments appearing in Schedule 1 hereto, or (ii) in any
applicable Assignment and Acceptance(s) to which it may be a party, as the case
may be, as such amount may be reduced from time to time in accordance with the
terms of this Credit Agreement or modified from time to time in accordance with
the terms of this Credit Agreement.
"Revolving Letter of Credit Commitment Termination Date" shall mean the
earlier of September 7, 2005, and the date on which the Total Revolving Letter
of Credit Commitment shall terminate in accordance with Section 2.8 or Article 7
hereof.
"Revolving Letter of Credit Lender" shall mean any Lender holding a
Revolving Letter of Credit Commitment hereunder.
"Revolving Letter of Credit Percentage" shall mean with respect to any
Revolving Letter of Credit Lender, the percentage of the Total Revolving Letter
of Credit Commitment represented by such Revolving Letter of Credit Lender's
Revolving Letter of Credit Commitment.
"Rights of Way" shall mean all rights of way, easements and all other
similar rights granted to any of the Loan Parties with respect to any portion of
a Network Segment (whether owned or leased), for the right to use and/or have
access to and through real property that are or should be evidenced by
instruments recorded in the appropriate real property records office where such
real property is located.
"S&P" shall mean Standard & Poor's Ratings Group (a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.), together with its successors, or, if such company
shall cease to issue ratings,
27
another nationally recognized statistical rating company selected in good faith
by mutual agreement of the Administrative Agent and the Borrower.
"Sale Leaseback Transaction" shall mean any arrangement with any Person
or Persons, whereby in contemporaneous or substantially contemporaneous
transactions a Loan Party or a Subsidiary of a Loan Party sells essentially all
of its right, title and interest in an asset and, in connection therewith,
acquires, leases or licenses back the right to use all or a portion of such
asset.
"Second Mortgage" shall mean that certain Second Mortgage, Assignment
of Leases and Rents, Security Agreement, Financing Statement and Fixture Filing
made and entered into as of the 15th day of October, 2002 by WTC in favor of the
Administrative Agent for the benefit of the Secured Parties, as such document
may be amended, amended and restated, supplemented, restructured or otherwise
modified, renewed or replaced from time to time.
"Secured Parties" shall mean the Agents, the Issuing Banks, the
Lenders, each Hedging Counterparty and each of their respective successors and
assigns.
"Securities Account" shall have the meaning given to such term in the
Security Agreement.
"Security Agreement" shall mean that certain Amended and Restated
Security Agreement dated as of April 23, 2001, as amended and restated as of
October 15, 2002, among Holdings, the Borrower, Old WCG and the Subsidiary Loan
Parties that are parties thereto on the one hand, and the Administrative Agent
on the other hand, substantially in the form of Exhibit H hereto, as such
agreement may be amended, amended and restated, supplemented or otherwise
modified, renewed or replaced from time to time.
"Segment Reporting" shall mean, with respect to Holdings, reporting
with respect to each of Holdings' and its Subsidiaries' business segments
consistent with that provided to the Lenders with Holdings' audited financial
statements for fiscal year 2001, or with respect to such business segments as
may be agreed to by the Administrative Agent in writing (such agreement not to
be unreasonably withheld).
"Specified Indebtedness" shall have the meaning given to such term in
Section 6.5(b) hereof.
"Specified Security" shall mean publicly traded equity securities of
actual or prospective customers or vendors of the Borrower or one or more of the
Subsidiary Loan Parties acquired by the Borrower or one or more of the
Subsidiary Loan Parties (as applicable) in connection with (or pursuant to
warrants, options or rights acquired in connection with) actual or prospective
commercial agreements with such customers or vendors; provided that any Equity
Interest of Holdings, the Borrower or any of their respective Affiliates shall
not constitute "a Specified Security."
"Specified Security Hedging Transactions" shall mean options, collars,
forwards and other similar transactions (including, without limitation, prepaid
forward transactions, collar/loan transactions and other similar transactions)
with respect to any Specified Security entered into by
28
the Borrower or any other Subsidiary Loan Party to monetize the value of, and/or
hedge against changes in, the market price of such Specified Security.
"Strategic Asset Disposition Letter" shall mean that certain letter
executed by the Borrower and delivered to the Administrative Agent and the
Lenders, which letter shall be dated as of the Amendment No. 9 Closing Date, and
designated therein as the "Strategic Asset Disposition Letter".
"Subsidiary" shall mean with respect to any Person, any corporation,
limited liability company, association, joint venture, partnership or other
business entity (whether now existing or hereafter organized) (a) of which at
least a majority of the voting stock or other ownership interests having
ordinary voting power for the election of directors (or the equivalent) is, at
the time as of which any determination is being made, 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, or (b) which is otherwise Controlled,
at the time as of which any determination is being made by such Person or one or
more subsidiaries of such Person, or by such Person and one or more subsidiaries
of such Person, or (c) which would be consolidated with such Person in such
Person's financial statements if such financial statements were prepared in
accordance with GAAP as of the date any determination is being made.
"Subsidiary Loan Party" shall mean any Subsidiary of the Borrower that
is or becomes a Guarantor hereunder.
"Syndication Agent" shall mean ▇▇ ▇▇▇▇▇▇ Chase Bank (formerly known as
The Chase Manhattan Bank), in its capacity as syndication agent for the Lenders
hereunder.
"Telecommunications Business" shall mean (i) the business of:
(a) transmitting, or providing services relating to the
transmission of, voice, video or data through owned
or leased transmission facilities or the right to use
such facilities;
(b) constructing, acquiring, creating, developing,
operating, managing or marketing communications
networks, related network transmission equipment,
software and other devices for use in a
communications business;
(c) constructing, managing, designing or operating fiber
optic telecommunications networks and leasing
capacity on those networks to or from third parties;
(d) the sale, resale, installation or maintenance of
communications systems or equipment (including
without limitation, fiber or conduit); or
(e) outsourcing services with respect to any of the
foregoing; and
(ii) activities reasonably related to any of the foregoing.
29
"Term Lenders" shall mean, collectively, the Lenders holding the Loans
hereunder.
"Title Company" shall mean a title insurance company of recognized
national standing which is acceptable to the Administrative Agent in its
reasonable discretion.
"Title Policy" shall mean, with respect to any Mortgaged Real Property
Asset, a mortgagee policy of title insurance (ALTA or the equivalent) or marked
"commitment" of title insurance insuring the Mortgage as a first priority Lien
(exclusive of the Second Mortgage, which shall be insured as a second priority
Lien) on such Mortgaged Real Property Asset in favor of the Administrative Agent
(for the benefit of the Secured Parties) free of all Liens other than Permitted
Encumbrances or such Liens as may be noted on such policy of title insurance and
which are acceptable to the Administrative Agent, which policy of title
insurance shall be issued by a Title Company in such policy amounts, with such
endorsements, and in form and substance reasonably satisfactory to the
Administrative Agent, and shall contain no exceptions to coverage other than
matters reasonably satisfactory to the Administrative Agent in its judgment
reasonably exercised.
"Total Credit Exposure" shall mean an amount equal to (i) the aggregate
principal amount of all outstanding Loans hereunder, plus (ii) the then current
amount of L/C Exposure, plus (iii) the amount of the unused Total Revolving
Letter of Credit Commitment then in effect.
"Total Revolving Letter of Credit Commitment" shall mean the aggregate
amount of the Revolving Letter of Credit Commitments then in effect of all of
the Revolving Letter of Credit Lenders, as such amount may be reduced or
modified from time to time in accordance with the terms of this Credit
Agreement.
"Trailing Four Quarters" shall mean, with respect to any date of
determination, the fiscal quarter then ended and the three (3) immediately
preceding fiscal quarters considered as a single period.
"UCC" shall mean the Uniform Commercial Code as in effect in the State
of New York at the relevant time.
"Voice Gross Margin" shall mean, for any period of determination, the
revenue of the voice business unit of Holdings, the Borrower and the other Loan
Parties for such period, minus the Voice Line Costs incurred in such period, in
each case as determined on a consolidated basis in accordance with GAAP. As used
herein, "Voice Line Costs" shall mean the off-net (i.e. third party) vendor
costs which are incurred by Holdings, the Borrower or the other Loan Parties in
providing voice services and which are primarily composed of the costs of
acquiring origination and termination services.
"WHBC" means ▇▇▇▇▇▇▇▇ Headquarters Building Company, a Delaware
corporation and a Subsidiary of The ▇▇▇▇▇▇▇▇ Companies, Inc.
"WTC" means ▇▇▇▇▇▇▇▇ Technology Center, LLC, a Delaware limited
liability company and a direct Subsidiary of the Borrower.
30
ARTICLE 2
THE LOANS
Section 2.1. Loans. (a) The parties hereby agree that on the Amendment
No. 9 Closing Date, the entire aggregate outstanding principal amount of the
Existing Loans shall be continued and combined into a single tranche of loans
(the "Loans") hereunder. The Borrower hereby confirms and acknowledges to the
Agents and the Lenders that it is validly and justly indebted to the Lenders for
the payment of all Existing Loans and the Loans without offset, defense, cause
of action or counterclaim of any kind or nature whatsoever.
(b) On the Amendment No. 9 Closing Date, the Loans shall be
held by each of the Lenders in such amounts as are set forth opposite the name
of such Lender under the column entitled "Outstanding Loans" on Schedule 1
hereto.
(c) Once repaid, none of the Loans may be re-borrowed.
Section 2.2. Interest Rate Type of the Loans. The Loans shall be
comprised of one or more Base Rate Loans and/or one or more Eurodollar Loans
(each such type of Loan, an "Interest Rate Type") (in each case, as such Loan
may be continued or converted pursuant to the provisions of Section 2.11
hereof). The parties hereto hereby agree that (a) each Existing Loan that is an
ABR Loan (as such term is defined in the Existing Credit Agreement) under the
Existing Credit Agreement shall on the Amendment No. 9 Closing Date continue as
a Base Rate Loan hereunder unless and until converted to a Eurodollar Loan in
accordance with the provisions hereof, and (b) each Existing Loan that is a
Eurodollar Loan (as such term is defined in the Existing Credit Agreement) under
the Existing Credit Agreement shall on the Amendment No. 9 Closing Date continue
as a Eurodollar Loan hereunder and its Interest Period shall end on the same
date that it would have ended under the Existing Credit Agreement (unless
converted prior to such date to a Base Rate Loan in accordance with the
provisions hereof). Subject to Sections 2.13(d) and 2.15(g) hereof, each Lender
may at its option fulfill its obligations hereunder with respect to any
Eurodollar Loan by causing a foreign branch or affiliate to make such Loan;
provided, that any exercise of such option shall not affect the obligation of
the Borrower to repay such Loan in accordance with the terms hereof and of any
Note. Subject to the provisions of Section 2.10(b), Section 2.11 and Section
2.14, Loans of more than one Interest Rate Type may be outstanding at the same
time.
Section 2.3. Total Revolving Letter of Credit Commitment. The parties
hereto hereby acknowledge and agree that on the Amendment No. 9 Closing Date,
the Total Revolving Letter of Credit Commitment shall be $45,000,000 and shall
only be available for the issuance of Letters of Credit pursuant to, and in
accordance with, the terms and provisions of this Credit Agreement. No loans or
advances shall be made pursuant to the Revolving Letter of Credit Commitments.
On the Amendment No. 9 Closing Date, the Revolving Letter of Credit Commitment
of each Lender shall be the amount set forth opposite the name of such Lender
under the column entitled "Revolving Letter of Credit Commitment" on Schedule 1
hereto.
Section 2.4. Letters of Credit. (a) The parties hereto hereby agree
that any Letter of Credit (as such term is defined in the Existing Credit
Agreement) issued and outstanding on the
31
Amendment No. 9 Closing Date under the Existing Credit Agreement shall, on and
after the Amendment No. 9 Closing Date, be a Letter of Credit hereunder.
(i) Upon the terms and subject to the conditions
hereof and of Applicable Law, each Issuing Bank agrees, upon the request of the
Borrower, to issue Letters of Credit (and to amend, renew or extend Letters of
Credit previously issued under this Credit Agreement) payable in Dollars from
time to time after the Amendment No. 9 Closing Date and prior to the Revolving
Letter of Credit Commitment Termination Date; provided, however, that (A) the
Borrower shall not request the issuance, amendment, renewal or extension of, and
no Issuing Bank shall issue, amend, renew or extend, any Letter of Credit if,
after giving effect thereto, the then current L/C Exposure would exceed an
amount equal to the Total Revolving Letter of Credit Commitment minus the
aggregate amount of cash deposits made, or pledged by, any of the Loan Parties
to Persons other than the Administrative Agent, and (B) the Borrower shall not
request the issuance, amendment, renewal or extension of, and no Issuing Bank
shall issue, amend, renew or extend, any Letter of Credit having an expiration
date (x) later than the fifth day prior to the Revolving Letter of Credit
Commitment Termination Date or (y) more than one year after its date of issuance
(or, in the case of any amendment, renewal or extension thereof, one year after
such amendment, renewal or extension); provided, that a Letter of Credit may
include customary "evergreen" provisions.
(ii) Immediately upon the issuance of each Letter of
Credit (or an amendment to a Letter of Credit increasing the amount thereof),
each Revolving Letter of Credit Lender shall be deemed to, and hereby agrees to
have, irrevocably purchased from the applicable Issuing Bank, a participation in
such Letter of Credit in accordance with such Revolving Letter of Credit
Lender's Revolving Letter of Credit Percentage. In furtherance of the foregoing,
each Revolving Letter of Credit Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of such Issuing Bank,
such Revolving Letter of Credit Lender's Revolving Letter of Credit Percentage
of each payment made by such Issuing Bank with respect to such Letter of Credit
which payment is not reimbursed by the Borrower on the date due as provided in
Section 2.4(e) or reimbursed from amounts held as cash collateral as provided in
Section 2.4(f), or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Revolving Letter of Credit Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or
extension of any Letter of Credit or the occurrence and continuance of any
Default or Event of Default or the reduction or termination of the Revolving
Letter of Credit Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(b) Whenever the Borrower desires the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit), it shall deliver to the Administrative Agent and the applicable Issuing
Bank from whom the Borrower is requesting such Letter of Credit (or amendment,
renewal or extension), a written notice no later than 1:00 p.m. (Eastern time)
at least two (2) Business Days prior to the proposed date of issuance,
amendment, renewal or extension (or such lesser time as is acceptable to the
Administrative Agent and the applicable Issuing Bank). Such notice shall specify
(i) the outstanding Letter of Credit to be amended, renewed or extended, if
applicable, (ii) the proposed date of issuance,
32
amendment, renewal or extension (which shall be a Business Day), (ii) the face
amount of the Letter of Credit, (iii) the expiration date of the Letter of
Credit, (iv) the name and address of the beneficiary and (v) such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the applicable Issuing Bank in connection with any
request for a Letter of Credit, the Borrower also shall submit a letter of
credit application on such Issuing Bank's standard form. Any notice pursuant to
this Section 2.4(b) shall be accompanied by a brief description of the
underlying transaction and upon request of the applicable Issuing Bank or the
Administrative Agent, the Borrower shall provide additional details regarding
the underlying transaction. Concurrently with the giving of written notice of a
request for the issuance of a Letter of Credit, the Borrower shall specify a
precise description of the documents and the verbatim text of any certificate to
be presented by the beneficiary of such Letter of Credit which, if presented by
such beneficiary prior to the expiration date of the Letter of Credit, would
require the applicable Issuing Bank to make payment under the Letter of Credit;
provided, however, that an Issuing Bank, in its reasonable discretion, may
require customary changes in any such documents and certificates to be presented
by the beneficiary. Any Letter of Credit shall be issued solely for general
corporate purposes in the ordinary course of the Borrower's and the Subsidiary
Loan Parties' respective businesses. Upon the issuance, amendment, renewal or
extension of a Letter of Credit, the applicable Issuing Bank shall notify the
Administrative Agent and the other Issuing Bank of such issuance, amendment,
renewal or extension (as applicable). Promptly after receipt of such notice, the
Administrative Agent shall notify each Revolving Letter of Credit Lender of the
issuance, amendment, renewal or extension (as applicable) and the amount of such
Revolving Letter of Credit Lender's respective participation in the applicable
Letter of Credit.
(c) Unless otherwise expressly agreed to by the applicable
Issuing Bank and the Borrower when a Letter of Credit is issued, each Letter of
Credit shall be subject to (i) the rules of the "International Standby Practices
1998" published by the Institute of International Banking Law & Practice (or
such later version thereof as may be in effect at the time of issuance (the
"ISP") and (ii) as to matters not addressed by the ISP, the law of the State of
New York (or, if the applicable Issuing Bank so elects, the law of the
jurisdiction in which the office from which it issues its Letters of Credit is
located). Each Issuing Bank shall be entitled to honor any drafts and accept any
documents presented to it by the beneficiary of such Letter of Credit in
accordance with the terms of such Letter of Credit and believed by such Issuing
Bank in good faith to be genuine. No Issuing Bank shall have any duty to inquire
as to the accuracy or authenticity of any draft or other drawing documents which
may be presented to it, but shall be responsible only to determine in accordance
with customary commercial practices that the documents which are required to be
presented before payment or acceptance of a draft under any Letter of Credit
have been delivered and that they substantially comply on their face with the
requirements of such Letter of Credit.
(d) If an Issuing Bank shall make payment on any draft
presented under a Letter of Credit (regardless of whether a Default, Event of
Default or acceleration has occurred and/or is continuing), the applicable
Issuing Bank shall give notice of such payment to the Borrower, the
Administrative Agent and the Revolving Letter of Credit Lenders; provided, that
any failure to give or any delay in giving such notice shall not relieve the
Borrower of its obligations pursuant to Section 2.4(e) below, and each Revolving
Letter of Credit Lender hereby
33
authorizes and requests the applicable Issuing Bank to advance for its account,
pursuant to the terms hereof, its share of such payment based upon its
participation in such Letter of Credit.
(e) The Borrower is absolutely, unconditionally and
irrevocably obligated to reimburse all amounts drawn under each Letter of
Credit. If any draft is presented under a Letter of Credit, then the Borrower
shall reimburse the applicable Issuing Bank for such draft by paying to the
Administrative Agent, in immediately available funds, in Dollars, the full
amount of such draft, (i) not later than 1:00 p.m., Dallas, Texas time, on the
Business Day that the Borrower receives notice of the applicable payment by the
Issuing Bank; provided that such notice is received by the Borrower prior to
9:30 a.m., Dallas, Texas time on such date, or (ii) if such notice is not
received by the Borrower by 9:30 a.m., Dallas, Texas time, then not later than
1:00 p.m., Dallas, Texas time on the Business Day immediately following the day
that the Borrower receives such notice. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Revolving Letter of Credit
Lenders have made payments pursuant to Section 2.4(f) below to reimburse the
Issuing Bank, then to such Revolving Letter of Credit Lenders and the applicable
Issuing Bank as their interests may appear. If an Issuing Bank shall make any
payment with respect to a Letter of Credit, then, unless the Borrower shall
reimburse such payment in full on the date such payment is made, the unpaid
amount thereof shall bear interest, for each day from and including the date
such payment is made to, but excluding, the date that the Borrower reimburses
such payment, at the rate per annum then applicable to Base Rate Loans
hereunder; provided that, if the Borrower fails to reimburse such payment when
due pursuant to this Section 2.4(e), then the Borrower shall pay interest at a
rate per annum equal to 2% in excess of the rate then in effect for Base Rate
Loans hereunder during the period from the date the reimbursement was due to,
but excluding, the date the Issuing Bank receives full reimbursement from the
Borrower. Interest accrued pursuant to this paragraph shall be for the account
of the applicable Issuing Bank, except that interest accrued on and after the
date of payment by any Revolving Letter of Credit Lender pursuant to Section
2.4(f) below to reimburse the applicable Issuing Bank shall be for the account
of such Revolving Letter of Credit Lender to the extent of such payment. The
Borrower agrees that an Issuing Bank may reimburse itself for any drawing under
a Letter of Credit from the balance in any account of the Borrower maintained
with such Issuing Bank. In the event of any such reimbursement, the applicable
Issuing Bank shall (and hereby agrees to) promptly notify the Borrower after
such reimbursement; provided, that any failure to provide such notice shall not
affect the validity or enforceability of any such reimbursement.
(f) In the event the Borrower fails to reimburse the
Administrative Agent (for the benefit of the applicable Issuing Bank) for the
full amount of any draft paid by such Issuing Bank under any Letter of Credit in
accordance with Section 2.4(e) above, then the Administrative Agent shall apply
amounts held by it as cash collateral for outstanding Letters of Credit to
reimburse the applicable Issuing Bank in full for the amount of any draft paid
by such Issuing Bank under such Letter of Credit. In the event that (1) the
Borrower has failed to reimburse an Issuing Bank in full for any draft paid by
such Issuing Bank under a Letter of Credit, and (2) if for any reason, there is
insufficient cash collateral held by the Administrative Agent to pay in full
such draft, then (A) the Administrative Agent shall notify each Revolving Letter
of Credit Lender of the applicable payment with respect to a Letter of Credit,
the payment due from the Borrower in respect thereof, and such Revolving Letter
of Credit Lender's
34
Revolving Letter of Credit Percentage thereof; (B) each Revolving Letter of
Credit Lender hereby agrees that it will promptly reimburse the applicable
Issuing Bank for such draft by paying to the Administrative Agent, in
immediately available funds in Dollars an amount equal to the unreimbursed
amount of the draft multiplied by such Revolving Letter of Credit Lender's
Revolving Letter of Credit Percentage, and (C) the Administrative Agent shall
promptly pay to the applicable Issuing Bank the amounts so received by it from
the Revolving Letter of Credit Lenders. If any such reimbursement is not made by
any Revolving Letter of Credit Lender in immediately available funds on the same
day on which the Issuing Bank shall have made payment on any such draft, such
Revolving Letter of Credit Lender shall pay interest thereon to the Issuing Bank
at a rate per annum equal to the Issuing Bank's cost of obtaining overnight
funds in the Federal Funds market for the first three (3) days following the
time when such Revolving Letter of Credit Lender fails to make the required
reimbursement, and thereafter at a rate per annum equal to the Base Rate plus
the Applicable Interest Margin for Base Rate Loans. Any payment made by a
Revolving Letter of Credit Lender pursuant to this Section 2.4(f) to reimburse
the applicable Issuing Bank for any payment with respect to a Letter of Credit
shall not constitute a loan to the Borrower and shall not relieve the Borrower
of its obligation to reimburse the Issuing Bank pursuant to the provisions of
this Section 2.4.
(g) (i) The Borrower agrees to pay the following amounts to
each Issuing Bank with respect to Letters of Credit issued by it hereunder:
(A) with respect to the issuance, amendment, renewal,
extension, transfer or other transaction related to a Letter
of Credit and each drawing made thereunder, documentary and
processing charges in accordance with such Issuing Bank's
standard schedule for such charges in effect at the time of
such issuance, amendment, renewal, extension, transfer,
drawing or other transaction, as the case may be (all such
charges shall be payable within ten (10) days after demand
therefor); and
(B) a fronting fee payable directly to such Issuing
Bank, for its own account, in the amount of $500 with respect
to each issuance of a Letter of Credit by such Issuing Bank
and in the amount of $250 with respect to each renewal of an
existing Letter of Credit issued by such Issuing Bank; such
fee shall be due and payable to such Issuing Bank on the date
of issuance or renewal of the applicable Letter of Credit.
(ii) The Borrower agrees to pay to the Administrative
Agent for the account of each Revolving Letter of Credit Lender, a participation
fee with respect to such Revolving Letter of Credit Lender's participations in
Letters of Credit for each day, which fee shall accrue at a rate equal to the
Applicable Interest Margin for Eurodollar Loans hereunder for such day on the
amount of such Revolving Letter of Credit Lender's L/C Exposure on such day.
Such participation fee shall be calculated in the same manner as interest on a
Eurodollar Loan, shall accrue daily and be due and payable in arrears on and
through the last Business Day of each month (commencing the last Business Day of
October, 2002) prior to the Revolving Letter of Credit Commitment Termination
Date or the expiration of the last outstanding Letter of Credit (whichever is
later) and on the later of the Revolving Letter of Credit Commitment Termination
Date and the expiration of the last outstanding Letter of Credit; provided,
however, that any such
35
fees accruing after the Revolving Letter of Credit Commitment Termination Date
shall be payable on demand. For any day from the occurrence and during the
continuance of an Event of Default pursuant to Section 7(b) or 7(c) hereof, such
fees shall be increased to an amount equal to 2% plus the Applicable Interest
Margin for Eurodollar Loans hereunder multiplied by the amount of the applicable
Revolving Letter of Credit Lender's L/C Exposure on such day; provided, however,
that if such Event of Default is waived by the applicable Lenders in accordance
with the terms of this Credit Agreement then the provisions of this sentence
shall be deemed waived from and after the effective date of the applicable
waiver; and
(iii) Promptly upon receipt by an Issuing Bank or the
Administrative Agent (as applicable) of any amount described in clause (ii) of
this Section 2.4(g), or any amount described in Section 2.4 owed by the Borrower
and previously reimbursed to the Issuing Bank by the Revolving Letter of Credit
Lenders, the applicable Issuing Bank or the Administrative Agent (as
appropriate) shall distribute to each Revolving Letter of Credit Lender its
participation fee or its pro rata share of such amount based on the amount paid
by such Revolving Letter of Credit Lender with respect to, the applicable
Letter(s) of Credit (as applicable). Amounts payable under clause (i)(A) and
(i)(B) of this Section 2.4(g) to an Issuing Bank shall be paid directly to such
Issuing Bank and shall be for its own account.
(h) If by reason of (i) any change in Applicable Law after the
Initial Date, or in the interpretation or administration thereof (including,
without limitation, any request, guideline or policy not having the force of
law) by any Governmental Authority charged with the interpretation or
administration thereof, or (ii) compliance by the Issuing Bank or any Revolving
Letter of Credit Lender with any direction, request or requirement (whether or
not having the force of law) issued after the Initial Date by any Governmental
Authority or monetary authority, including, without limitation, any change
whether or not proposed or published prior to the Initial Date and any
modifications to Regulation D occurring after the Initial Date: or
(A) the Issuing Bank or any Revolving Letter of
Credit Lender shall be subject to any tax, levy, impost, duty,
fee, charge, deduction or withholding of any nature with
respect to any Letter of Credit or to any variation thereof,
or to any penalty with respect to the maintenance or
fulfillment of its obligations under this Section 2.4, whether
directly or by such being imposed on or suffered by the
Issuing Bank or any Revolving Letter of Credit Lender (other
than withholding tax imposed by the United States of America
or any other tax, levy, impost, duty, fee, charge, deduction
or withholding (1) that is measured with respect to the
overall net income of the Issuing Bank or such Revolving
Letter of Credit Lender or of a Lending Office of the Issuing
Bank or such Revolving Letter of Credit Lender, and that is
imposed by the United States of America, or by the
jurisdiction in which the Issuing Bank or such Revolving
Letter of Credit Lender is incorporated, or in which such
Issuing Bank, Revolving Letter of Credit Lender or Lending
Office is located, managed or controlled or in which the
Issuing Bank or such Revolving Letter of Credit Lender has its
principal office or a presence which is not otherwise
connected with, or required by, this transaction (or any
political subdivision or taxing authority thereof or therein)
or (2) that is imposed solely by reason of the Issuing Bank or
such Revolving Letter of Credit Lender
36
failing to make a declaration of, or otherwise to establish,
nonresidence or to make any other claim for exemption, or
otherwise to comply with any certification, identification,
information, documentation or reporting requirements
prescribed under the laws of the relevant jurisdiction, in
those cases where the Issuing Bank or such Revolving Letter of
Credit Lender may properly make the declaration or claim or so
establish nonresidence or otherwise comply (including, without
limitation, any failure to provide a form or other statement
in accordance with Section 2.15(a)) or any variation or
penalty with respect to any such other tax, levy, impost,
duty, fee, charge, deduction or withholding described in this
parenthetical);
(B) the basis of taxation of any fee or amount
payable hereunder with respect to any Letter of Credit or any
participation therein shall be changed;
(C) any reserve, deposit or similar requirement is or
shall be applicable, imposed or modified in respect of any
Letter of Credit issued by the Issuing Bank or participations
therein purchased by any Revolving Letter of Credit Lender; or
(D) there shall be imposed on the Issuing Bank or any
Revolving Letter of Credit Lender any other condition
regarding its obligations under this Section 2.4, any Letter
of Credit or any participation therein;
and the result of the foregoing is to directly or indirectly increase from the
conditions that exist on the Initial Date the cost to the Issuing Bank or any
Revolving Letter of Credit Lender of issuing, making or maintaining any Letter
of Credit or of purchasing or maintaining any participation therein, or to
reduce the amount receivable in respect thereof by the Issuing Bank or any
Revolving Letter of Credit Lender, then and in any such case, the Issuing Bank
or such Revolving Letter of Credit Lender may, at any time, notify the Borrower,
and the Borrower shall pay on demand such amounts as the Issuing Bank or such
Revolving Letter of Credit Lender may specify to be necessary to compensate the
Issuing Bank or such Revolving Letter of Credit Lender for such additional cost
or reduced receipt. Sections 2.13(b), (c) and (d) shall in all instances apply
to the Issuing Bank and any Revolving Letter of Credit Lender with respect to
the Letters of Credit issued hereunder or participations therein. The
determination by the Issuing Bank or any Revolving Letter of Credit Lender, as
the case may be, of any amount due pursuant to this Section 2.4 as set forth in
a certificate setting forth the calculation thereof in reasonable detail shall,
in the absence of manifest error, be final, conclusive and binding on all of the
parties hereto.
(i) Prior to, and as a condition precedent to, the issuance,
amendment, renewal or extension of any Letter of Credit, the Borrower shall
deliver to, and maintain with, the Administrative Agent cash collateral in an
amount equal to 105% of the aggregate amount of L/C Exposure (including, without
limitation, any L/C Exposure with respect to any Letter of Credit then being
requested). Such cash collateral shall be deposited in the L/C Cash Collateral
Account for the benefit of the Secured Parties. Each such deposit shall be held
by the Administrative Agent (for the benefit of the Secured Parties) as
collateral for the payment and performance of the obligations of the Borrower
under this Credit Agreement. The L/C Cash
37
Collateral Account shall be under the sole dominion and control (including,
without limitation, the exclusive right of withdrawal) of the Administrative
Agent. Any interest earned on the deposits in the L/C Cash Collateral Account
shall accumulate in such account. In accordance with Section 2.4(f) above, any
amounts delivered pursuant to this Section 2.4(i) may be applied to reimburse an
Issuing Bank for the amount of any drawings honored under Letters of Credit
issued by such Issuing Bank and any costs associated with such Letters of
Credit; provided, however, that if prior to the Revolving Letter of Credit
Commitment Termination Date, Letters of Credit shall terminate, expire or be
returned by the beneficiary, or interest shall accumulate in the L/C Cash
Collateral Account, so that the amount of the cash collateral held by the
Administrative Agent in the L/C Cash Collateral Account shall exceed 105% of the
then current L/C Exposure, then such excess shall first be applied to pay any
Obligations then due and owing and then; provided no Default or Event of Default
has occurred and is then continuing, the remainder shall be returned to the
Borrower. In the event that a Default or Event of Default has occurred and is
continuing (and until all Defaults and Events of Defaults have been cured or
waived), all cash collateral then held by the Administrative Agent in the L/C
Cash Collateral Account shall be held as security first for Obligations relating
to Letters of Credit and may be applied in payment of such Obligations; and only
when all such Obligations have been paid in full in cash or the Required
Revolving Letter of Credit Lenders otherwise consent, then such cash collateral
shall be held as security for other Obligations and may be applied to pay such
other Obligations.
(j) Notwithstanding the termination of the Total Revolving
Letter of Credit Commitment, the obligations of the Borrower under this Section
2.4 shall remain in full force and effect until the Administrative Agent, the
Issuing Banks and the Revolving Letter of Credit Lenders shall have been
irrevocably released from their obligations with regard to any and all Letters
of Credit.
(k) The obligations of the Borrower to reimburse the Issuing
Banks and the Revolving Letter of Credit Lenders for drawings and other payments
made under or with respect to any Letter of Credit shall be absolute,
unconditional and irrevocable, and shall be paid and performed strictly in
accordance with the terms of this Credit Agreement under all circumstances,
including, without limitation: (i) any lack of validity or enforceability of any
Letter of Credit, this Credit Agreement, or any term or provision therein or
herein; (ii) the existence of any claim, setoff, defense or other right which
the Borrower may have at any time against a beneficiary of any Letter of Credit
or against any Issuing Bank or any of the Revolving Letter of Credit Lenders,
whether in connection with this Credit Agreement, the transactions contemplated
herein or any unrelated transaction; (iii) payment by any Issuing Bank against
any draft, demand, certificate or other document presented under any Letter of
Credit which proves to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect; (iv)
payment by any Issuing Bank of any Letter of Credit against presentation of a
demand, draft or certificate or other document which does not comply with the
terms of such Letter of Credit (including, without limitation, payment by any
Issuing Bank in accordance with its usual practices and procedures, subsequent
to the expiry date of a Letter of Credit, as long as the applicable Issuing Bank
has obtained the consent of the Borrower thereto and has not been notified in
writing by the Administrative Agent or a Revolving Letter of Credit Lender of
the occurrence of the Revolving Letter of Credit Commitment Termination Date);
(v) any other circumstance or happening whatsoever, whether or not similar to
any of the
38
foregoing, that might, but for the provisions of this Section, constitute a
legal or equitable discharge of, or provide a right of setoff against any of the
Borrower's obligations hereunder; or (vi) the fact that any Event of Default
shall have occurred and be continuing (it being understood that any such payment
by the Borrower shall be without prejudice to, and shall not constitute a waiver
of, any rights the Borrower might have or might acquire against any party as a
result of the payment by any Issuing Bank of any draft or the reimbursement by
the Borrower thereof). None of the Administrative Agent, the other Agents, the
Lenders, the Issuing Banks, or any of the foregoing's Related Parties, shall
have any liability or responsibility by reason of, or in connection with, the
issuance or transfer of any Letter of Credit or any payment or failure to make
any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss, or delay in
transmission or delivery of any draft, notice or other communication under, or
relating to, any Letter of Credit (including, without limitation, any document
required to make a drawing thereunder), any error in interpretation of technical
terms or any consequence arising from causes beyond the control of an Issuing
Bank; provided that the foregoing shall not be construed to excuse an Issuing
Bank from liability to the Borrower or the other Loan Parties to the extent of
any direct damages (as opposed to consequential damages, claims in respect of
which are hereby waived by the Borrower and the other Loan Parties to the extent
permitted by Applicable Law) suffered by the Borrower or the other Loan Parties
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto hereby expressly agree that, except
in the case of gross negligence or willful misconduct on the part of an Issuing
Bank (as determined by a final order or judgment of a court of competent
jurisdiction), each Issuing Bank shall be deemed to have exercised care in each
such determination. In furtherance of the foregoing and without limiting the
generality thereof, the parties hereto hereby agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation (regardless of any notice or
information to the contrary) or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(l) An Issuing Bank may be replaced at any time by written
agreement among the Borrower, the Administrative Agent, the replaced Issuing
Bank and the successor Issuing Bank. The Administrative Agent shall notify the
Lenders of any such replacement of an Issuing Bank. At the time any such
replacement shall become effective, the Borrower shall pay all unpaid fees
accrued for the account of the replaced Issuing Bank pursuant to this Section
2.4. From and after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations of an Issuing
Bank under this Credit Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor, to any other Issuing Bank, to any previous Issuing
Bank, or collectively, to such successor, all other Issuing Banks and all
previous issuing Banks, as the context shall require. After the replacement of
an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Credit Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue any additional Letters
of Credit or to amend, renew or extend any outstanding Letters of Credit issued
by it. After the replacement of an Issuing Bank hereunder, the provisions of
this Section 2.4 shall inure to the benefit of such
39
replaced Issuing Bank, its sub-agents and its Related Parties as to any actions
taken or omitted to be taken by it while it was an Issuing Bank or acting on
behalf of an Issuing Bank under this Credit Agreement.
(m) In the event of any inconsistency between the terms and
conditions of this Credit Agreement, on the one hand, and the terms and
conditions of any letter of credit application or other agreement submitted by
the Borrower to, or entered into by the Borrower with, an Issuing Bank relating
to any Letter of Credit, on the other hand, the terms and conditions of this
Credit Agreement shall control.
Section 2.5. Repayment of Loans; Evidence of Debt. (a) The Loans shall
be payable as follows (subject to acceleration as provided in Article 7 hereof;
and subject to adjustment for the application of prepayments (if any) of the
Loans made pursuant to Section 2.9 hereof, as provided in such Section 2.9):
Amount of
Date Installment of Principal is Due Principal Payment
------------------------------------ -----------------
June 30, 2005.............................................. $ 9,375,000
September 30, 2005......................................... $ 73,125,000
December 31, 2005.......................................... $ 73,125,000
March 31, 2006............................................. $ 73,125,000
June 30, 2006.............................................. $ 73,125,000
Maturity Date.............................................. $ 73,125,000
The Loans shall be subject to mandatory prepayment as provided in
Section 2.9 hereof. The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Lenders holding the Loans (i) the
amortization payments provided for above on the dates when due, and (ii) on the
Maturity Date, the then aggregate unpaid principal amount of all Loans plus all
other unpaid amounts then owing in respect of the Loans.
(b) All repayments of Loans under this Section 2.5 shall, as
regards Interest Rate Type, be applied first to Base Rate Loans, and then to
Eurodollar Loans in the order of the scheduled expiry of Interest Periods with
respect thereto (i.e., those Eurodollar Loans with Interest Periods which end
sooner would be paid before those with Interest Periods which end later.)
(c) All repayments of Loans shall be accompanied by accrued
interest (to the date of repayment) on the amount being repaid.
(d) All amounts received by the Administrative Agent from or
on behalf of the Borrower as a payment of principal of, or interest on, the
Loans shall be applied among the Lenders holding the Loans on a pro rata basis
in accordance with the outstanding Loans owed to each such Lender.
40
(e) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the Borrower to
such Lender resulting from the Loans made by such Lender, including, without
limitation, the amounts of principal and interest payable and paid to such
Lender from time to time hereunder.
(f) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each outstanding Loan hereunder, the Interest
Rate Type thereof and the Interest Period applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(g) The entries made in the accounts maintained pursuant to
paragraph (e) or (f) of this Section 2.5 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein and shall be
conclusive absent manifest error; provided, however, that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans and other Obligations hereunder in accordance with the terms of this
Credit Agreement.
(h) No promissory notes evidencing Loans or Revolving Letter
of Credit Commitments hereunder will be issued unless a Lender requests the
Loans made by it or Revolving Letter of Credit Commitment held by it be
evidenced by a promissory note. In such event, the Borrower shall promptly
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns permitted by Section 11.3), in substantially the form of
Exhibit G hereto (any such note being referred to herein as a "Note").
Thereafter, the Loans or Revolving Letter of Credit Commitment evidenced by such
Note and interest thereon (as applicable) shall at all times (including after
assignment pursuant to Section 11.3 hereof) be represented by one or more Notes
payable to the order of the payee named therein.
Section 2.6. Interest. (a) Subject to Section 2.10 hereof, in the case
of a Base Rate Loan, interest shall be payable at a rate per annum (computed on
the basis of the actual number of days elapsed over a year of 365/366 days, as
the case may be, during such times as the Base Rate is based upon the Prime
Rate, and over a year of 360 days at all other times) equal to the Base Rate
plus the Applicable Interest Margin for Base Rate Loans. Interest shall be
payable in arrears on each Base Rate Loan on each Interest Payment Date, and on
the Maturity Date; provided, that (i) interest accrued pursuant to Section
2.10(a) shall be payable on demand, and (ii) in the event of any repayment or
prepayment of any Base Rate Loan, accrued interest on the principal amount being
repaid or prepaid shall be payable on the date of such repayment or prepayment.
The Administrative Agent shall determine the Base Rate applicable to the Base
Rate Loans hereunder and such determination shall be conclusive absent manifest
error.
(b) Subject to Section 2.10 hereof, in the case of a
Eurodollar Loan, interest shall be payable at a rate per annum (computed on the
basis of the actual number of days elapsed over a year of 360 days) equal to the
LIBO Rate plus the Applicable Interest Margin for Eurodollar Loans. Interest
shall be payable on each Eurodollar Loan on each Interest Payment Date
(regardless of the applicable Interest Period), and on the Maturity Date;
provided, that
41
(i) interest accrued pursuant to Section 2.10(a) shall be payable on demand,
(ii) subject to the provisions hereof, including without limitation, Sections
2.9(l) and 2.12, in the event of any repayment or prepayment of any Eurodollar
Loan, accrued interest on the principal amount being repaid or prepaid shall be
payable on the date of such repayment or prepayment, and (iii) in the event of
any conversion of any Eurodollar Loan prior to the end of the Interest Period
therefor, accrued interest on such Eurodollar Loan shall be payable on the
effective date of such conversion. The Administrative Agent shall determine the
applicable LIBO Rate for each Interest Period as soon as practicable on the date
when such determination is to be made in respect of such Interest Period; and
such determination shall be conclusive absent manifest error.
(c) Interest in respect of any Loan hereunder shall accrue
from and including the date of such Loan, to but excluding, the date on which
such Loan is paid or, if applicable, converted to a Loan of a different Interest
Rate Type.
Section 2.7. Commitment Fees and Other Fees. (a) The Borrower agrees to
pay to the Administrative Agent for the account of each Revolving Letter of
Credit Lender, a fee for each day during the period in which the Total Revolving
Letter of Credit Commitment remains in effect (but excluding the date on which
the Total Revolving Letter of Credit Commitment terminates), at a rate equal to
1% per annum (computed on the basis of a year of 360 days and payable for the
actual number of days elapsed) on the amount on such day by which such Revolving
Letter of Credit Lender's Revolving Letter of Credit Commitment (as such
Revolving Letter of Credit Commitment may be modified in accordance with the
provisions of this Credit Agreement) exceeded the product of such Revolving
Letter of Credit Lender's Revolving Letter of Credit Percentage and the L/C
Exposure on such day.
The foregoing fee shall be referred to herein as the
"Commitment Fee" for a Revolving Letter of Credit Lender and collectively, for
all the Revolving Letter of Credit Lenders, as the "Commitment Fees". Accrued
Commitment Fees shall be payable in arrears on the last Business Day of each
month in each year (commencing on the last Business Day of October, 2002) prior
to the Revolving Letter of Credit Commitment Termination Date, on the date of
any termination or reduction of the Total Revolving Letter of Credit Commitment
and on the Revolving Letter of Credit Commitment Termination Date.
(b) The Borrower agrees to pay to the Administrative Agent any
and all fees as and when such fees become due and payable under and pursuant to
the Administration Fee Letter.
(c) All fees payable hereunder shall be paid on the dates due,
in Dollars, in immediately available funds. Fees paid shall be fully earned on
the due date and shall not be refundable under any circumstances.
Section 2.8. Termination and/or Reduction of the Total Revolving Letter
of Credit Commitment.
(a) Unless previously terminated, the Total Revolving Letter
of Credit Commitment shall terminate on the Revolving Letter of Credit
Commitment Termination Date.
42
(b) Upon at least three (3) Business Days' prior written,
facsimile or telephonic notice (provided that any such telephonic notice is
immediately confirmed in writing) to the Administrative Agent, the Borrower may
at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Total Revolving Letter of Credit Commitment. In the case
of a partial reduction, each such reduction of the Total Revolving Letter of
Credit Commitment shall be in a minimum aggregate principal amount of $5,000,000
or such greater amount which is an integral multiple of $1,000,000; provided,
however, that the Total Revolving Letter of Credit Commitment may not be reduced
to an amount less than the then current L/C Exposure. Each notice delivered by
the Borrower pursuant to this Section 2.8(b) shall be irrevocable.
(c) Any partial reduction of the Total Revolving Letter of
Credit Commitment hereunder shall be made among the Revolving Letter of Credit
Lenders ratably in accordance with their respective Revolving Letter of Credit
Percentages.
(d) Simultaneously with each termination or reduction of the
Total Revolving Letter of Credit Commitment, the Borrower shall pay to the
Administrative Agent for the benefit of the Revolving Letter of Credit Lenders,
all accrued and unpaid Commitment Fees on the amount of the Total Revolving
Letter of Credit Commitment so terminated or reduced through the date of such
termination or reduction.
Section 2.9. Prepayments. (a) Subject to the terms of Section 2.12
hereof, the Borrower shall have the right at its option at any time and from
time to time to prepay (i) any Base Rate Loan, in whole or in part, upon at
least one (1) Business Day's prior written, facsimile, or telephonic notice
(provided that any such telephonic notice is immediately confirmed in writing)
to the Administrative Agent received not later than 11:00 a.m. (Dallas, Texas
time) on such day, in the principal amount of $5,000,000 or such greater amount
which is an integral multiple of $1,000,000 if prepaid in part and (ii) any
Eurodollar Loan, in whole or in part, upon at least three (3) Business Days'
prior written, facsimile, or telephonic notice (provided that any such
telephonic notice is immediately confirmed in writing) received not later than
11:00 a.m. (Dallas, Texas time) on such day, in the principal amount of
$5,000,000 or such greater amount which is an integral multiple of $1,000,000 if
prepaid in part. Each notice of prepayment shall specify the prepayment date,
each Loan to be prepaid and the principal amount thereof, shall be irrevocable
and shall commit the Borrower to prepay each such Loan in the amount and on the
date stated therein.
(b) Following the end of each fiscal year of Holdings
(commencing with the fiscal year ending December 31, 2002), the Borrower shall
prepay Loans in an amount equal to 100% of the Excess Cash Flow for such fiscal
year. Each prepayment pursuant to this Section 2.9(b) shall be made on or before
the date on which financial statements are delivered pursuant to Section 5.1(a)
with respect to the fiscal year for which Excess Cash Flow is being calculated
(and in any event within ninety (90) days after the end of such fiscal year).
Concurrently with the making of each prepayment pursuant to this Section 2.9(b),
the Borrower shall deliver to the Administrative Agent, a certificate
substantially in the form of Exhibit F hereto signed by a Financial Officer of
Holdings setting forth in reasonable detail the calculation of Excess Cash Flow
for the applicable fiscal year. Any prepayments from Excess Cash Flow with
respect to fiscal years 2002, 2003 and 2004 shall be applied to reduce
subsequent scheduled
43
amortization payments pursuant to Section 2.5(a) hereof, in direct chronological
order of maturity. All other prepayments from Excess Cash Flow pursuant to this
Section 2.9(b) shall be applied to reduce scheduled amortization payments
pursuant to Section 2.5(a) hereof, in inverse chronological order of maturity.
(c) No later than one (1) Business Day after the receipt of
any Net Cash Proceeds by any Loan Party from any of the following: (i) any
refinancing of all or any portion of the outstanding Loans hereunder, (ii) any
issuance by any Loan Party of any Indebtedness (other than Indebtedness
permitted under Section 6.1 hereof, other than Section 6.1(b)), (iii) any other
transaction similar to any of the foregoing which transaction generates Net Cash
Proceeds to any Loan Party (including, without limitation, any Sale Leaseback
Transaction, other than a Sale Leaseback Transaction permitted by Section 6.7
hereof), or (iv) any sale or other disposition of any asset of a Loan Party not
permitted by the terms and provisions of this Credit Agreement, the Borrower
shall prepay Loans in an amount equal to 100% of the Net Cash Proceeds received
by a Loan Party. Each prepayment pursuant to this Section 2.9(c) shall be
applied to reduce subsequent scheduled amortization payments pursuant to Section
2.5(a) hereof in inverse chronological order of maturity.
(d) No later than one (1) Business Day after the receipt of
any Net Cash Proceeds by any Loan Party from any sale or other disposition of
all or a portion of the assets described in the Strategic Asset Disposition
Letter (other than assets sold in the ordinary course of business pursuant to
Section 6.6(e) hereof, the assets listed in item 4 on Schedule 6.6(i) sold
pursuant to Section 6.6(i) hereof and assets sold pursuant to Section 6.6(n)
hereof which assets are non-core assets and are not essential to the business
described in the Strategic Asset Disposition Letter), the Borrower shall prepay
Loans in an amount equal to 100% of the Net Cash Proceeds received by a Loan
Party; provided, however, that the Borrower shall not be required to make any
prepayment of Loans pursuant to this Section 2.9(d) upon receipt of any such Net
Cash Proceeds if the unwind has occurred as contemplated by paragraph 5 of the
Escrow Agreement. Each prepayment pursuant to this Section 2.9(d) shall be
applied to reduce subsequent scheduled amortization payments pursuant to Section
2.5(a) hereof in direct chronological order of maturity.
(e) No later than one (1) Business Day after the receipt of
any Net Cash Proceeds by any Loan Party from any sale or other disposition of
any asset pursuant to a Sale Leaseback Transaction permitted by Section 6.7(b)
hereof, the Borrower shall prepay loans in an amount equal to 50% of the amount
by which the Net Cash Proceeds received exceeds the NPV Amount for the lease
entered into pursuant to the applicable Sale Leaseback Transaction (such NPV
Amount to be determined as of the date the applicable Net Cash Proceeds are
received). Each prepayment pursuant to this Section 2.9(e) shall be applied to
reduce subsequent scheduled amortization payments pursuant to Section 2.5(a)
hereof in direct chronological order of maturity.
(f) No later than one (1) Business Day after the receipt of
any Net Cash Proceeds by any Loan Party from any of the following: (i) any
purchase or other acquisition by a third party (other than by a Loan Party or a
Permitted Investor) from a Loan Party of any Equity Interests issued by any Loan
Party, (ii) the formation of a Joint Venture or (iii) any other transaction
similar to any of the foregoing which transaction generates Net Cash Proceeds to
any
44
Loan Party (but excluding any such similar transaction where a Permitted
Investor is paying the Net Cash Proceeds), the Borrower shall prepay Loans in an
amount equal to 50% of the Net Cash Proceeds received by such Loan Party. Each
prepayment pursuant to this Section 2.9(f) shall be applied to reduce subsequent
scheduled amortization payments pursuant to Section 2.5(a) hereof in direct
chronological order of maturity.
(g) No later than three (3) Business Days following the
receipt by the Borrower or any other Loan Party (or by the Administrative Agent
as loss payee) of any payment of any proceeds of any Recovery Event (provided,
that so long as no Event of Default shall have occurred and then be continuing,
such proceeds received in connection with any Recovery Event (or any portion
thereof) may be expended or irrevocably committed by the Borrower or any other
Loan Party to repair or replace such property within twelve (12) months of such
Recovery Event and the Borrower shall furnish to the Administrative Agent
evidence reasonably satisfactory to the Administrative Agent of such expenditure
or commitment and shall have certified to the Administrative Agent that such
proceeds (or such proceeds together with other funds which are available to the
Borrower and permitted to be used for such purpose pursuant to the terms hereof)
are sufficient to repair or replace such property pending which the
Administrative Agent shall hold such proceeds in an interest bearing deposit
account), the Borrower shall prepay or, to the extent the Administrative Agent
is loss payee under any insurance policy (if applicable), irrevocably direct the
Administrative Agent to apply as a prepayment, an amount equal to 100% (or such
lesser percentage which represents the remaining portion of such proceeds not
expended or committed pursuant to the immediately preceding parenthetical
phrase) of such proceeds received in connection with such Recovery Event;
provided, that if an Event of Default shall have occurred and be continuing, all
proceeds of any Recovery Event which would otherwise be payable to the Borrower
pursuant to this Section 2.9(g) shall be paid to the Administrative Agent and
applied pursuant to Section 10.2 hereof; provided, however, that with respect to
tangible property subject to any Permitted Encumbrance, no such prepayment shall
be required to the extent that this Section would require an application of
proceeds of any Recovery Event that would violate or breach any of the
provisions of the instruments or documents under which such Permitted
Encumbrance arises or which governs the application of proceeds (including,
without limitation, the OTC Documents as in effect on the Amendment No. 9
Closing Date or as thereafter amended, restated, renewed, replaced,
restructured, supplemented or otherwise modified in accordance with the terms
hereof).
(h) Any prepayments pursuant to this Section 2.9 not otherwise
specifically provided for in this Section 2.9 shall be applied to reduce
scheduled amortization payments pursuant to Section 2.5(a) hereof, in inverse
chronological order of maturity.
(i) Concurrently with the making of any prepayment pursuant to
Section 2.9(c), 2.9(d), 2.9(e), 2.9(f) or 2.9(g), the Borrower and Holdings (or
Old WCG, if applicable) shall deliver to the Administrative Agent, a certificate
signed by a Financial Officer of the Borrower and a Financial Officer of
Holdings (or Old WCG, if applicable) setting forth a reasonably detailed
calculation of the amount of such prepayment.
(j) All prepayments of Loans under this Section 2.9 shall, as
regards Interest Rate Type, be applied first to Base Rate Loans, and subject to
Section 2.9(l) hereof, then to Eurodollar Loans in the order of the scheduled
expiry of Interest Periods with respect thereto (i.e.
45
those Eurodollar Loans with Interest Periods which end sooner would be paid
before those with Interest Periods which end later).
(k) All prepayments under this Section 2.9 shall be
accompanied by accrued but unpaid interest on the principal amount being prepaid
to (but not including) the date of prepayment.
(l) If on any day on which Loans would otherwise be required
to be prepaid pursuant to this Section 2.9, but for the operation of this
Section 2.9(l) (each a "Prepayment Date"), the amount of such required
prepayment exceeds the then outstanding aggregate principal amount of Base Rate
Loans and no Default or Event of Default exists or is continuing, then on such
Prepayment Date, (i) the Borrower may deposit Dollars into the Cash Collateral
Account in an amount equal to such excess, and only the outstanding Base Rate
Loans which are of the type required to be prepaid shall be required to be
prepaid on such Prepayment Date, and (ii) if the Borrower deposits Dollars into
the Cash Collateral Account in accordance with the immediately preceding clause,
then on the last day of each Interest Period after such Prepayment Date in
effect with respect to a Eurodollar Loan, the Administrative Agent is
irrevocably authorized and directed to apply funds from the Cash Collateral
Account (and liquidate investments held in the Cash Collateral Account as
necessary) to prepay such Eurodollar Loans for which the Interest Period is then
ending to the extent funds are available in the Cash Collateral Account.
Section 2.10. Default Interest; Alternate Rate of Interest. (a) In the
event that, and for so long as, any Event of Default pursuant to Section 7(b) or
7(c) hereof shall have occurred and be continuing, the Borrower shall on demand
from time to time pay interest, to the extent permitted by Applicable Law, on
all Loans and overdue amounts outstanding up to (but not including) the date of
actual payment of such Loan or overdue amount (after as well as before judgment)
(i) for all Eurodollar Loans, at 2% in excess of the higher of (x) the rate then
in effect for Eurodollar Loans and (y) the rate then in effect for Base Rate
Loans (it being understood by the parties hereto that no Eurodollar Loan may be
continued into a subsequent Interest Period and no Base Rate Loan may be
converted to a Eurodollar Loan, at any time when an Event of Default shall have
occurred and then be continuing unless the Administrative Agent and the Required
Lenders otherwise consent), (ii) for all Base Rate Loans, at 2% in excess of the
rate then in effect for Base Rate Loans and (iii) for all other overdue amounts
hereunder, at 2% in excess of the rate then in effect for Base Rate Loans;
provided, however, that if such Event of Default is waived by the applicable
Lenders in accordance with the terms of this Credit Agreement, then the
provisions of this Section 2.10(a) shall also be deemed waived from and after
the effective date of the applicable waiver.
(b) In the event, and on each occasion, that on or before the
day on which the LIBO Rate for a Eurodollar Loan is to be determined as set
forth herein, (i) the Administrative Agent shall have received notice from
Lenders constituting Required Lenders of such determination (which
determination, absent manifest error, shall be conclusive) that Dollar deposits
in an amount equal to the principal amount of such Lender's Eurodollar Loan are
not generally available in the London Interbank Market or that the rate at which
such Dollar deposits are being offered will not adequately and fairly reflect
the cost to such Lender of making or maintaining the principal amount of such
Lender's Eurodollar Loan during the applicable Interest
46
Period or (ii) the Administrative Agent shall have determined that adequate and
reasonable means do not exist for ascertaining the applicable LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
facsimile notice of such determination by such Lenders or the Administrative
Agent to the Borrower and the Lenders; and any request by the Borrower for a
conversion to or continuation as a Eurodollar Loan pursuant to Section 2.11
hereof, made after receipt of such notice and until the circumstances giving
rise to such notice no longer exist, shall be ineffective, in the case of a
request for a conversion to a Eurodollar Loans and shall be deemed to be a
request for a Base Rate Loan, in the case of a request for a continuation of a
Eurodollar Loan.
Section 2.11. Continuation and Conversion of Loans. The Borrower shall
have the right (i) to convert any Eurodollar Loan or portion thereof to a Base
Rate Loan, or to continue any Eurodollar Loan for a successive Interest Period,
or (ii) to convert any Base Rate Loan or portion thereof to a Eurodollar Loan,
subject to the following:
(a) at least three (3) Business Days prior to any conversion
or continuation hereunder, the Borrower shall deliver to the Administrative
Agent a notice with respect thereto in the form of a Conversion/Continuation
Certificate executed on behalf of the Borrower by a Financial Officer of the
Borrower; such notice shall be irrevocable and to be effective, must be received
by the Administrative Agent on the day required not later than 11:00 a.m.,
Dallas, Texas time;
(b) unless the Administrative Agent and the Required Lenders
otherwise consent, no Event of Default shall have occurred and be continuing at
the time of any conversion to a Eurodollar Loan or continuation of a Eurodollar
Loan into a subsequent Interest Period;
(c) the aggregate principal amount of Loans continued as, or
converted to, Eurodollar Loans as part of the same continuation or conversion,
shall be in a minimum amount of $10,000,000;
(d) if fewer than all Loans at the time outstanding shall be
continued or converted, such continuation or conversion shall be made pro rata
among the Lenders in accordance with the respective principal amount of such
Loans held by the Lenders immediately prior to such continuation or conversion;
(e) no Base Rate Loan (or portion thereof) may be converted to
a Eurodollar Loan and no Eurodollar Loan may be continued as a Eurodollar Loan
if, after such conversion or continuation, and after giving effect to any
concurrent prepayment of Loans, an aggregate of more than five (5) separate
Eurodollar Loans would be outstanding hereunder with respect to a Lender (for
purposes of determining the number of such Loans outstanding, Loans with
different Interest Periods shall be counted as different Eurodollar Loans even
if made on the same date);
(f) the Interest Period with respect to a new Eurodollar Loan
effected by a continuation or conversion shall commence on the date of such
continuation or conversion;
(g) if a Eurodollar Loan is converted to a Base Rate Loan
other than on the last day of the Interest Period with respect thereto, the
amounts required by Section 2.12 shall be paid upon such conversion;
47
(h) accrued interest on a Eurodollar Loan (or portion thereof)
being converted to a Base Rate Loan shall be paid by the Borrower at the time of
conversion; and
(i) each request for a continuation as, or conversion to, a
Eurodollar Loan which fails to state an applicable Interest Period shall be
deemed to be a request for an Interest Period of one month.
Subject to the foregoing, in the event that the Borrower shall not
deliver a notice to continue or convert any Eurodollar Loan as provided above,
such Loan (unless repaid) shall automatically be converted to a Base Rate Loan
at the expiration of the then current Interest Period. The Administrative Agent
shall, after it receives a notice from the Borrower, promptly give the Lenders
notice of any continuation or conversion and of such Lender's portion of each
resulting Loan.
Section 2.12. Reimbursement of Lenders. (a) The Borrower shall
reimburse each Lender on demand for any loss incurred or to be incurred by such
Lender in the re-employment of the funds released (i) by any prepayment or
conversion (for any reason whatsoever) of a Eurodollar Loan if such Loan is
prepaid or converted prior to the last day of the Interest Period for such Loan
or (ii) in the event that after the Borrower delivers a notice of continuation
or conversion under Section 2.11 in respect of a Eurodollar Loan, such Loan is
not continued or converted on the first day of the Interest Period specified in
the applicable notice for any reason other than a suspension or limitation under
Section 2.10(b) of the right of the Borrower to select a Eurodollar Loan. Such
loss shall be the amount as reasonably determined by such Lender as the excess,
if any, of (A) the amount of interest which would have accrued to such Lender on
the amount so paid or not continued or converted at a rate of interest equal to
the interest rate applicable to such Loan pursuant to Section 2.6 hereof (but
excluding any Applicable Interest Margin), for the period from the date of such
payment or failure to continue or convert to the last day (x) in the case of a
payment prior to the last day of the Interest Period for such Loan, of the then
current Interest Period for such Loan, or (y) in the case of a failure to
continue or convert, of the Interest Period for such Loan which would have
commenced on the date of such failure to continue or convert, over (B) the
amount realized by such Lender in re-employing the funds received in prepayment
or realized from the Loan not so continued or converted during the period
referred to above. Each Lender shall deliver to the Borrower and to the
Administrative Agent from time to time one or more certificates setting forth
the amount of such loss (and in reasonable detail the manner of computation
thereof) as determined by such Lender, which certificates shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amounts shown on
such certificate within ten (10) days of the Borrower's receipt of such
certificate.
(b) In the event the Borrower fails to prepay any Loan on the
date specified in any prepayment notice delivered pursuant to Section 2.9(a),
the Borrower on demand by any Lender, shall pay to the Administrative Agent for
the account of such Lender any amounts required to compensate such Lender for
any actual loss incurred by such Lender as a result of such failure to prepay,
including, without limitation, any loss, cost or expenses incurred by reason of
the acquisition of deposits or other funds by such Lender to fulfill obligations
incurred in anticipation of such prepayment (but excluding any loss of
anticipated profits). Each Lender shall deliver to the Borrower and to the
Administrative Agent from time to time one or more
48
certificates setting forth the amount of such loss (and in reasonable detail the
manner of computation thereof) as determined by such Lender, which certificates
shall be conclusive absent manifest error. The Borrower shall pay the
Administrative Agent for the account of such Lender the amounts shown on such
certificate within ten (10) days of the Borrower's receipt of such certificate.
Section 2.13. Change in Circumstances. (a) In the event that after the
Initial Date, any change in Applicable Law or in the interpretation or
administration thereof (including, without limitation, any request, guideline or
policy not having the force of law) by any Governmental Authority charged with
the administration or interpretation thereof or, with respect to clauses (ii),
(iii) or (iv) below any changes in conditions, shall occur which shall:
(i) subject any Lender to, or increase the net amount
of, any tax, levy, impost, duty, charge, fee, deduction or withholding with
respect to any Eurodollar Loan or to any penalty with respect to the maintenance
or fulfillment of such Lender's obligations under this Credit Agreement with
respect to Eurodollar Loans (other than withholding tax imposed by the United
States of America or any political subdivision or taxing authority thereof or
therein or any other tax, levy, impost, duty, charge, fee, deduction or
withholding (or any penalty with respect thereto) (x) that is measured with
respect to the overall net income of such Lender or of a Lending Office of such
Lender, and that is imposed by the United States of America, or by the
jurisdiction in which such Lender or Lending Office is incorporated, in which
such Lender or Lending Office is located, managed or controlled or in which such
Lender has its principal office or a presence not otherwise connected with, or
required by, this transaction (or any political subdivision or taxing authority
thereof or therein), or (y) that is imposed solely by reason of any Lender
failing to make a declaration of, or otherwise to establish, nonresidence, or to
make any other claim for exemption, or otherwise to comply with any
certification, identification, information, documentation or reporting
requirements prescribed under the laws of the relevant jurisdiction, in those
cases where a Lender may properly make such declaration or claim or so establish
nonresidence or otherwise comply) (including, without limitation, any failure to
provide a form or other statement in accordance with Section 2.15(a) hereof); or
(ii) change the basis of taxation of any payment to
any Lender of principal of or interest on any Eurodollar Loan or other fees and
amounts payable to any Lender hereunder, or any combination of the foregoing,
other than withholding tax imposed by the United States of America or any
political subdivision or taxing authority thereof or therein or any other tax,
levy, impost, duty, charge, fee, deduction or withholding that is measured with
respect to the overall net income of such Lender or of a Lending Office of such
Lender, and that is imposed by the United States of America, or by the
jurisdiction in which such Lender or Lending Office is incorporated, in which
such Lending Office is located, managed or controlled or in which such Lender
has its principal office or a presence not otherwise connected with, or required
by, this transaction (or any political subdivision or taxing authority thereof
or therein); or
(iii) impose, modify or deem applicable any reserve,
deposit or similar requirement against any assets held by, deposits with or for
the account of, or loans or commitments by, an office of such Lender with
respect to any Eurodollar Loan; or
49
(iv) impose upon such Lender or the London Interbank
Market any other condition with respect to the Eurodollar Loans made by such
Lender or this Credit Agreement;
and the result of any of the foregoing shall be to increase the cost to such
Lender of converting a Base Rate Loan to a Eurodollar Loan or maintaining any
Eurodollar Loan hereunder (or of maintaining its obligation to do any of the
foregoing) or to reduce the amount of any payment (whether of principal,
interest or otherwise) received or receivable by such Lender in connection with
any Eurodollar Loan hereunder, or to require such Lender to make any payment in
connection with any Eurodollar Loan hereunder, then and in each case, the
Borrower agrees to pay to the Administrative Agent for the account of such
Lender, in accordance with, and as provided in, paragraph (c) below, such
amounts as shall be necessary to compensate such Lender for such cost, reduction
or payment.
(b) If at any time and from time to time after the Initial
Date, any Lender shall have determined that the applicability of any law, rule,
regulation or guideline regarding capital adequacy which is adopted after the
Initial Date, or any change in any law, rule, regulation or guideline regarding
capital adequacy or in the interpretation or administration of any of the
foregoing by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof, or the compliance by
any Lender (or any Lending Office of such Lender) or any Lender's holding
company with any request or directive issued after the Initial Date regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on such Lender's capital or on the capital of such Lender's
holding company, if any, as a consequence of this Credit Agreement or the Loans
made or Letters of Credit issued pursuant hereto to a level below that which
such Lender or such Lender's holding company could have achieved but for such
applicability, adoption, change or compliance (taking into consideration such
Lender's policies and the policies of such Lender's holding company with respect
to capital adequacy), then from time to time the Borrower agrees to pay to the
Administrative Agent for the account of such Lender, in accordance with, and as
provided in, paragraph (c) below, such additional amount or amounts as will
compensate such Lender or such Lender's holding company for any such reduction
suffered to the extent attributable to this Credit Agreement or the Loans made
or Letters of Credit issued pursuant hereto.
(c) Each Lender shall deliver to the Borrower and to the
Administrative Agent from time to time one or more certificates setting forth
the amounts due to such Lender under paragraph (a) or (b) above, the changes as
a result of which such amounts are due and the manner of computing such amounts
in reasonable detail. Each such certificate shall be conclusive in the absence
of manifest error. The Borrower shall pay to the Administrative Agent for the
account of each such Lender the amounts shown as due on any such certificate
within ten (10) Business Days after the Borrower's receipt of the same. No
failure on the part of any Lender to demand compensation under paragraph (a) or
(b) above on any one occasion shall constitute a waiver of its right to demand
such compensation on any other occasion. The protection of this Section 2.13
shall be available to each Lender regardless of any possible contention of the
invalidity or inapplicability of any law, regulation or other condition which
shall give rise to any demand by such Lender for compensation hereunder.
50
(d) Each Lender agrees that after it becomes aware of the
occurrence of an event or the existence of a condition that (i) would cause it
to incur any increased cost hereunder or render it unable to perform its
agreements hereunder for the reasons specifically set forth in Section 2.4(h),
this Section 2.13 or Section 2.14 or (ii) would require the Borrower to pay an
increased amount under Section 2.4(h), this Section 2.13 or Section 2.14, it
will use reasonable efforts to notify the Borrower in writing of such event or
condition and, to the extent not inconsistent with such Lender's internal
policies, will use its reasonable efforts to make, fund or maintain the affected
Loans of such Lender, or if applicable, participate in Letters of Credit as
required by Section 2.4, through another Lending Office of such Lender if as a
result thereof the additional monies which would otherwise be required to be
paid or the reduction of amounts receivable by such Lender hereunder in respect
of such Loans, Letters of Credit or participations therein would be materially
reduced, or such inability to perform would cease to exist, or the increased
costs which would otherwise be required to be paid in respect of such Loans,
Letters of Credit or participations pursuant to Section 2.4(h), this Section
2.13 or Section 2.14 would be materially reduced or the taxes or other amounts
otherwise payable under Section 2.4(h), Section 2.13 or Section 2.14 would be
materially reduced, and if, as determined by such Lender, in its sole
discretion, the making, funding or maintaining of such Loans, Letters of Credit
or participations therein through such other Lending Office would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
action taken by such Lender to comply with this Section 2.13(d), subject to
receipt of a statement in reasonable detail setting forth such costs and
expenses. The Borrower shall pay to the Administrative Agent for the account of
such Lender the amounts shown as due on any such statement within ten (10)
Business Days after the Borrower's receipt of the same.
(e) If the Borrower shall receive notice from any Lender that
Eurodollar Loans are no longer available from such Lender pursuant to Section
2.14, that amounts are due to such Lender pursuant to paragraph (c) hereof, that
any of the events designated in paragraph (d) hereof have occurred, or that an
event has occurred that would cause the Borrower to pay any amount pursuant to
clause (e) of Section 2.15, the Borrower may (at its sole cost, expense and
effort, and subject in any such case to the payments required by this Credit
Agreement, including, without limitation Section 2.12 hereof), upon at least
five (5) Business Days' prior written or facsimile notice to such Lender and the
Administrative Agent, but not more than thirty (30) days after receipt of notice
from such Lender, identify to the Administrative Agent a lending institution
("Purchasing Lender") reasonably acceptable to the Borrower and the
Administrative Agent (and the Issuing Banks if the Revolving Letter of Credit
Commitment is being assigned) which will purchase (for an amount, in immediately
available funds, equal to the principal amount of outstanding Loans payable to
such Lender, plus all accrued but unpaid interest and fees payable to such
Lender) the Revolving Letter of Credit Commitment (if applicable), the amount of
outstanding Loans and participations in Letters of Credit (as applicable), from
the Lender providing such notice, and such Lender shall thereupon assign its
Revolving Letter of Credit Commitment (if applicable), its participations in
Letters of Credit (if applicable) and any Loans owing to such Lender, and any
Notes held by such Lender, to such Purchasing Lender pursuant to Section 11.3
hereof. A Lender shall not be required to make any assignment pursuant to this
Section 2.13(e) if (A) prior to such assignment, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment cease to apply, or (B) prior to such assignment, such Lender elects
to withdraw its applicable request or
51
notice, or (C) after such assignment, Eurodollar Loans would not be available
from the Purchasing Lender or amounts payable to the Purchasing Lender pursuant
to the various provisions set forth at the beginning of this Section 2.13(e),
would not be materially less than the amounts payable to the Lender which is
otherwise required to enter into the applicable assignment pursuant to this
Section 2.13(e).
Section 2.14. Change in Legality. (a) Notwithstanding anything to the
contrary contained elsewhere in this Credit Agreement, if any change after the
date hereof in Applicable Law, guideline or order, or in the interpretation
thereof by any Governmental Authority charged with the administration thereof,
shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or
to give effect to its obligations as contemplated hereby with respect to a
Eurodollar Loan, then, by written notice to the Borrower and the Administrative
Agent, such Lender may (i) declare that Eurodollar Loans will not thereafter be
made by such Lender hereunder and/or (ii) require that, subject to Section 2.12,
all outstanding Eurodollar Loans made by it be converted to Base Rate Loans,
whereupon all of such Eurodollar Loans shall automatically be converted to Base
Rate Loans, as of the effective date of such notice as provided in paragraph (b)
below. Such Lender's pro rata portion of any subsequent Eurodollar Loan shall,
instead, be a Base Rate Loan unless such declaration is subsequently withdrawn.
(b) A notice to the Borrower by any Lender pursuant to
paragraph (a) above shall be effective for purposes of clause (ii) thereof, if
lawful, on the last day of the current Interest Period for each outstanding
Eurodollar Loan; and in all other cases, on the date of receipt of such notice
by the Borrower.
Section 2.15. United States Withholding. (a) Prior to the Amendment No.
9 Closing Date, prior to the effective date set forth in the Assignment and
Acceptance with respect to any Lender becoming a Lender after the Amendment No.
9 Closing Date, and from time to time after the Amendment No. 9 Closing Date (if
requested by the Borrower or the Administrative Agent or required because, as a
result of a change in law or a change in circumstances or otherwise, a
previously delivered form or statement becomes obsolete, incomplete or incorrect
in any material respect) each Lender organized under the laws of a jurisdiction
outside the United States shall provide the Administrative Agent and the
Borrower with complete, accurate and duly executed forms or other statements
prescribed by the Internal Revenue Service of the United States certifying such
Lender's exemption from, or entitlement to a reduced rate of, United States
withholding taxes (including backup withholding taxes) with respect to all
payments to be made to such Lender hereunder and under any other Loan Document.
(b) The Borrower or the Administrative Agent shall be entitled
to deduct and withhold any and all present or future taxes or withholdings, and
all liabilities with respect thereto, from payments to a Lender hereunder or
under any other Loan Document, if and to the extent that the Borrower or the
Administrative Agent in good faith determines that such deduction or withholding
is required by the law of the United States, including, without limitation, any
applicable treaty of the United States. In the event the Borrower or the
Administrative Agent shall so determine that deduction or withholding of taxes
is required, it shall advise the affected Lender as to the basis of such
determination prior to actually deducting and withholding such taxes. In the
event the Borrower or the Administrative Agent shall so deduct or withhold taxes
from amounts payable hereunder, it (i) shall pay to, or deposit with, the
52
appropriate taxing authority in a timely manner the full amount of taxes it has
deducted or withheld; (ii) shall provide to each Lender from whom taxes were
deducted or withheld, evidence of payment of such taxes to, or the deposit
thereof with, the appropriate taxing authority and a statement setting forth the
amount of taxes deducted or withheld, the applicable rate, and any other
information or documentation reasonably requested by such Lender; and (iii)
shall forward to each such Lender any official tax receipts or other
documentation with respect to the payment or deposit of the deducted or withheld
taxes as may be issued from time to time by the appropriate taxing authority.
Unless the Borrower and the Administrative Agent have received forms or other
documents satisfactory to them indicating that payments hereunder or under any
Note hereunder are not subject to United States withholding tax or are subject
to such tax at a rate reduced by an applicable tax treaty, the Borrower or the
Administrative Agent may withhold taxes from such payments at the applicable
statutory rate in the case of payments to or for any Lender organized under the
laws of a jurisdiction outside the United States.
(c) Each Lender agrees (i) that as between it and the Borrower
or the Administrative Agent, such Lender shall be the Person to deduct and
withhold taxes, and to the extent required by Applicable Law, it shall deduct
and withhold taxes on amounts that such Lender may remit to any other Person(s)
by reason of any undisclosed transfer or assignment of an interest in this
Credit Agreement to such other Person(s) pursuant to Section 11.3; and (ii) to
indemnify the Borrower, the Administrative Agent and Related Parties of the
Borrower or the Administrative Agent against, and to hold them harmless from,
any tax, interest, additions to tax, penalties, reasonable counsel and
accountants' fees, disbursements or payments arising from the assertion by any
appropriate taxing authority of any claim against them relating to a failure to
withhold taxes as required by law with respect to amounts described in clause
(i) of this paragraph (c) or arising from the reliance by the Borrower or the
Administrative Agent on any form or other document furnished by such Lender and
purporting to establish a basis for not withholding, or for withholding at a
reduced rate, taxes with respect to payments hereunder or under any other Loan
Document.
(d) Each assignee of a Lender's interest in this Credit
Agreement in conformity with Section 11.3 shall be bound by this Section 2.15,
so that such assignee will have all of the obligations and shall timely provide
all of the forms and statements and all indemnities, representations and
warranties required to be given by the assigning Lender under this Section 2.15.
(e) Notwithstanding the foregoing, in the event that any
withholding taxes or additional withholding taxes shall become payable solely as
a result of any change in any statute, treaty, ruling, determination or
regulation occurring after the Initial Date in respect of any sum payable
hereunder or under any other Loan Document to any Lender, any Issuing Bank or
any of the Agents (i) the sum payable by the Borrower shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.15) such Lender or
the applicable Agent (as the case may be) receives an amount equal to the sum it
would have received had no such withholding deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with Applicable Law and (iv) the Borrower shall forward to such
Lender or the applicable Agent (as the case may be) the official tax receipts or
other documentation pursuant to and as set forth in Section 2.15(b). In
53
addition, in the event of the change described above, the Borrower shall
indemnify each Lender and each of the Agents for any additional withholding
taxes paid by such Lender or such Agent, as the case may be, or any liability
(including penalties and interest) arising therefrom or with respect thereto,
whether or not such additional withholding taxes were correctly or legally
asserted. For purposes of this Section 2.15(e), taxes shall include penalties,
interest, additions to tax and expenses relating to taxes.
(f) In the event that a Lender or an Agent receives a refund
of or utilizes a tax credit for taxes withheld or paid pursuant to this Section
2.15, which credit or refund is identifiable by such Lender or such Agent (as
applicable) as being a result of taxes withheld or paid in connection with sums
payable hereunder or under any other Loan Document, such Lender or such Agent
(as applicable) shall promptly notify the Administrative Agent and the Borrower
and shall promptly remit to the Borrower the amount of such refund or credit
allocable to payments made hereunder or under any other Loan Document, net of
all out-of-pocket expenses of the applicable Agent or Lender (including any tax
on such refund or credit) and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided,
however, that the Borrower, upon request of such Lender or Agent, agrees to
repay the amount paid over to the Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to the applicable
Lender or Agent in the event such Lender or Agent is required to repay such
refund to such Governmental Authority or such credit is disallowed. Nothing
contained herein shall require any of the Agents or any Lender to make available
its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
(g) Each Lender agrees that after it becomes aware of the
occurrence of an event that would cause the Borrower to pay any amount pursuant
to clause (e) of this Section 2.15, it will use reasonable efforts to notify the
Borrower of such event and, to the extent not inconsistent with such Lender's
internal policies, will use its reasonable efforts to maintain the affected
Loans of such Lender through another Lending Office of such Lender if as a
result thereof the additional monies which would otherwise be required to be
paid by reason of Section 2.15(e) in respect of such Loans would be materially
reduced, and if, as determined by such Lender, in its discretion, the
maintaining of such Loans through such other Lending Office would not otherwise
be disadvantageous to such Lender.
(h) For any period with respect to which a Lender has failed
to provide the Borrower or the Administrative Agent with the appropriate form or
statement pursuant to Section 2.15(a) (unless such failure is due to a change in
treaty, statute, ruling, determination, law or regulation occurring subsequent
to the date on which a form or statement originally was required to be
provided), such Lender shall not be entitled to indemnification under Section
2.15(e); provided, however, that should a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become subject to taxes because
of its failure to deliver a form or statement required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request to assist such
Lender to recover such taxes.
(i) None of the Lenders or the Agents shall be obligated to
contest a tax that is indemnified hereunder by the Borrower, unless in the sole
discretion of the applicable Lender
54
or Agent, there is a reasonable basis for such contest and such contest would
not be disadvantageous to such Lender or Agent (as applicable) in any respect.
Section 2.16. Interest Adjustments. If the provisions of this Credit
Agreement or any Note hereunder would at any time require payment by the
Borrower to a Lender of any amount of interest in excess of the maximum amount
then permitted by Applicable Law, the applicable interest payments to that
Lender in connection with the applicable Loan or other obligation shall be
reduced to the extent and in such a manner as is necessary in order that such
Lender shall not receive interest in excess of such maximum amount. If, as a
result of the foregoing, a Lender shall receive interest payments hereunder with
respect to a Loan or other obligation or under a Note in an amount less than the
amount otherwise provided hereunder, such deficit (hereinafter called the
"Interest Deficit") will, to the fullest extent permitted by Applicable Law,
cumulate and will be carried forward (without interest) until the Bank Credit
Termination Date (except to the extent paid pursuant to the immediately
succeeding sentence). Interest otherwise payable to a Lender hereunder with
respect to the applicable Loan or other obligation and under any Note for any
subsequent period shall be increased by the maximum amount of the Interest
Deficit that may be so added without causing such Lender to receive interest in
excess of the maximum amount then permitted by Applicable Law.
The amount of any Interest Deficit relating to any Loan or other
obligation and any Note shall be treated as a prepayment penalty and shall, to
the fullest extent permitted by Applicable Law, be paid in full at the time of
any optional prepayment by the Borrower to the Lenders of all the Loans at that
time outstanding pursuant to Section 2.9(a) hereof. The amount of any Interest
Deficit relating to a Loan or other obligation and any Note at the time of any
complete payment of the Loans at that time outstanding (other than an optional
prepayment thereof pursuant to Section 2.9(a) hereof) shall be canceled and not
paid.
Section 2.17. Provisions Regarding Payments and Application of
Payments. (a) Subject to Section 2.17(b) below, all payments of principal and
interest by the Borrower or any other Loan Party in respect of the Loans shall
be allocated pro rata among the Lenders holding the Loans in accordance with the
then outstanding principal amounts of Loans held by them. All payments by the
Borrower or any other Loan Party hereunder and under any Notes hereunder shall
be made without offset, counterclaim, recoupment, defense, setoff or other
deduction in Dollars, in Federal or other immediately available funds, at the
office of Bank of America, N.A., Dallas, Texas, ABA No. ▇▇▇▇▇▇▇▇▇, Account No.
1292000883, Attention: Account Name: Corporate Credit Services, for credit to
▇▇▇▇▇▇▇▇ Communications LLC, no later than 1:00 p.m., Dallas, Texas time, on the
date on which such payment shall be due. Any payment received at such office
after such time shall be deemed received on the following Business Day. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof.
(b) To the extent not otherwise provided herein, if at any
time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal on the Loans, unreimbursed payments
made by an Issuing Bank (or the Revolving Letter of Credit Lenders) with respect
to Letters of Credit (such unreimbursed payments being referred to in this
Section 2.17(b) and Section 11.11 hereof as "L/C Disbursements"), interest and
fees then due and payable hereunder, such funds shall be applied as follows: (i)
first, towards
55
payment of interest and fees then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal on the Loans and L/C
Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal on the Loans and L/C Disbursements then
due to such parties.
(c) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or an Issuing Bank hereunder
that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the applicable Issuing Bank, as the case may be, the amount due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or
Issuing Banks, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF the LOAN PARTIES
In order to induce the Agents, the Issuing Banks and the Lenders to
enter into Amendment No. 9 to the Credit Agreement, to continue and combine the
Existing Loans as provided herein and to issue or purchase participations in the
Letters of Credit provided for herein, the Loan Parties, jointly and severally,
make the following representations and warranties to, and agreements with, the
Agents, the Issuing Banks and the Lenders, all of which shall survive the
execution and delivery of this Credit Agreement, the issuance of any Notes, the
continuation and combination of the Existing Loans and the issuance of Letters
of Credit hereunder:
Section 3.1. Existence and Power. (a) The Borrower is a limited
liability company duly organized, validly existing and in good standing under
the laws of Delaware and is qualified to do business and is in good standing in
all other jurisdictions where both (i) the nature of its properties or business
so requires and (ii) the failure to be in good standing could reasonably be
expected to result in a Material Adverse Effect (a list of such jurisdictions as
of the Amendment No. 9 Closing Date is attached hereto as Schedule 3.1(a)).
(b) Holdings is a corporation duly organized, validly existing
and in good standing under the laws of Nevada and is qualified to do business
and is in good standing in all other jurisdictions where both (i) the nature of
its properties or business so requires and (ii) the failure to be in good
standing could reasonably be expected to result in a Material Adverse Effect (a
list of such jurisdictions as of the Amendment No. 9 Closing Date is attached
hereto as Schedule 3.1(b)).
56
(c) Old WCG is a corporation duly organized, validly existing
and in good standing under the laws of Delaware and is qualified to do business
and is in good standing in all other jurisdictions where both (i) the nature of
its properties or business so requires and (ii) the failure to be in good
standing could reasonably be expected to result in a Material Adverse Effect (a
list of such jurisdictions as of the Amendment No. 9 Closing Date is attached
hereto as Schedule 3.1(c)).
(d) Each Loan Party (other than the Borrower, Holdings and Old
WCG) is a corporation, limited liability company, general partnership, limited
partnership, or business trust duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and is qualified to
do business and is in good standing in all other jurisdictions where both (i)
the nature of its properties or business so requires and (ii) the failure to be
in good standing could reasonably be expected to result in a Material Adverse
Effect (a list of such jurisdictions as of the Amendment No. 9 Closing Date is
attached hereto as Schedule 3.1(d)).
(e) Each of the Loan Parties has the corporate, company or
partnership, as the case may be, power and authority (i) to own its respective
properties and carry on its respective business as now being, or as now intended
to be, conducted, (ii) to execute, deliver and perform, as applicable, its
obligations under this Credit Agreement and the other Loan Documents and any
other documents contemplated hereby or thereby to which it is or will be a
party, and (iii) to grant to the Administrative Agent, for the benefit of the
Secured Parties, a security interest in the Collateral and the Mortgaged Real
Property Assets as contemplated, and as continued, by this Credit Agreement and
the other Loan Documents to which it is or will be a party; and in the case of
Pledgors, to pledge to the Administrative Agent for the benefit of the Secured
Parties, the Pledged Collateral as contemplated by the Security Agreement; and
in the case of the Borrower, to borrow and obtain Letters of Credit hereunder;
and in the case of the Guarantors, to guaranty the Obligations as contemplated
by Article 8 hereof.
Section 3.2. Authority and No Violation. The execution, delivery and
performance of this Credit Agreement and the other Loan Documents to which it is
a party, by each Loan Party, the grant to the Administrative Agent for the
benefit of the Secured Parties of the security interest in the Collateral and
the Mortgaged Real Property Assets as contemplated, and as continued, by this
Credit Agreement and the other Loan Documents to which it is or will be a party,
by each Loan Party, and the pledge to the Administrative Agent for the benefit
of the Secured Parties of the Pledged Collateral as contemplated by the Security
Agreement by each Pledgor and, in the case of the Borrower, the Borrowings
hereunder and the execution, delivery and performance of any Notes hereunder
and, in the case of each Guarantor, the guaranty of the Obligations as
contemplated in Article 8 hereof, (i) have been duly authorized by all necessary
corporate, partnership or limited liability company (as applicable) action on
the part of each such Loan Party and by all necessary stockholder, partner or
member (as applicable) action, (ii) will not constitute a violation of any
provision of Applicable Law that could reasonably be expected to result in a
Material Adverse Effect, or a material violation of any material order of any
Governmental Authority applicable to such Loan Party or any of its respective
properties or assets, (iii) will not violate any provision of the Certificate of
Incorporation, By-Laws, partnership agreement, limited liability company
agreement, articles of organization or any other organizational document of any
Loan Party, or any provision of any indenture, bond, note, mortgage, deed of
trust, any similar instrument or agreement evidencing Indebtedness, or any
57
Material Agreement, to which such Loan Party is a party or subject or by which
such Loan Party or any of its respective properties or assets are bound, (iv)
will not be in conflict with, result in a breach of, or constitute (with due
notice or lapse of time or both) a default under, or create any right to
terminate, any such indenture, bond, note, mortgage, deed of trust, similar
instrument or agreement evidencing Indebtedness or Material Agreement, or give
rise to any right under any of the foregoing to require any payment to be made
by any Loan Party, and (v) will not result in the creation or imposition of (or
the obligation to create or impose) any Lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of any of the Loan
Parties or any Subsidiary of a Loan Party other than pursuant to this Credit
Agreement or the other Loan Documents.
Section 3.3. Governmental Approval. (a) All authorizations, approvals,
orders, consents, licenses, registrations or filings from or with any
Governmental Authority required for the execution, delivery and performance by
any Loan Party of this Credit Agreement or any of the other Loan Documents to
which it is a party, and the execution and delivery by the Borrower of any Notes
hereunder, have been duly obtained or made, and are in full force and effect.
(b) Each Loan Party has obtained and holds in full force and
effect all governmental authorizations, orders, consents, licenses, franchises,
permits, certificates, accreditations, easements, rights of way and other
approvals necessary to own its respective property and assets and to carry on
its respective business as now being, or as now intended to be, conducted, other
than those the absence of which is not reasonably likely to result in a Material
Adverse Effect.
(c) As of the Amendment No. 9 Closing Date, except as set
forth on Schedule 3.3(c) hereto, no Loan Party has been notified by any
Governmental Authority with respect to a material authorization, order, consent,
license, franchise, permit, certificate, accreditation, easement, right of way
or other approval to operate its business as currently being conducted, or
intended to be conducted, of such authority's intention to rescind, or not
renew, any such authorization, order, consent, license, franchise, permit,
certificate, accreditation, easement, right of way or other approval.
Section 3.4. Binding Agreements. Each Loan Party has duly executed and
delivered this Credit Agreement and each other Loan Document to which it is a
party. Each of this Credit Agreement and the other Loan Documents constitutes
the legal, valid and binding obligation of each Loan Party that is a party
thereto, enforceable against such Loan Party in accordance with its respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights generally
and by general principles of equity, whether such enforceability is considered
in a proceeding at law or in equity.
Section 3.5. No Material Adverse Effect. (a) Except as set forth on
Schedule 3.5(a) hereto, since June 30, 2002, there has been no Material Adverse
Effect.
(b) No Loan Party has entered or is entering into the
arrangements contemplated hereby and by the other Loan Documents, or intends to
make any transfer or incur any obligations hereunder or thereunder, with actual
intent to hinder, delay or defraud either
58
present or future creditors. On and as of the Amendment No. 9 Closing Date, on a
pro forma basis after giving effect to all Indebtedness (including, without
limitation, the Loans) expected to be borrowed (if any), then outstanding and/or
repaid or otherwise satisfied on the Amendment No. 9 Closing Date: (i) each Loan
Party expects the cash available to such Loan Party, after taking into account
all other anticipated uses of the cash of such Loan Party (including the
payments on or in respect of debt referred to in clause (iii) of this Section
3.5(b)), will be sufficient to satisfy all final judgments for money damages
which have been docketed against such Loan Party or which may be rendered
against such Loan Party in any action in which such Loan Party is a defendant
(taking into account the reasonably anticipated maximum amount of any such
judgment and the earliest time at which such judgment might be entered); (ii)
the sum of the present fair saleable value of the assets of each Loan Party will
exceed the probable liability of such Loan Party on its debts (including its
Guaranties); (iii) no Loan Party will have incurred or intends to, or believes
that it will, incur debts beyond its ability to pay such debts as such debts
mature (taking into account the timing and amounts of cash to be received by
such Loan Party from any source, and of amounts to be payable on or in respect
of debts of such Loan Party and the amounts referred to in clause (i)); and (iv)
each Loan Party believes it will have sufficient capital with which to conduct
its present and proposed business and the property of such Loan Party does not
constitute unreasonably small capital with which to conduct its present or
proposed business. For purposes of this Section 3.5(b), "debt" means any
liability or a claim, and "claim" means any (y) right to payment whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (z) right to an equitable remedy for breach of performance if such
breach gives rise to a payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured.
Section 3.6. Financial Information. (a) (i) The audited, consolidated
balance sheet of Old WCG and its Consolidated Subsidiaries at December 31, 2001,
together with the related statements of operations, stockholders' equity and
cash flows and the related notes and supplemental information; (ii) the audited,
consolidated balance sheet of the Borrower and its Consolidated Subsidiaries at
December 31, 2001, together with the related statements of operations and cash
flows and the related notes and supplemental information; (iii) the unaudited,
consolidated balance sheets of Old WCG and its Consolidated Subsidiaries at
March 31, 2002 and at June 30, 2002, together in each case with the related
statements of operations and cash flows and the related notes and supplemental
information, in the case of clauses (i), (ii) and (iii), in the forms which have
previously been delivered to the Lenders, have been prepared in accordance with
GAAP consistently applied, except as otherwise indicated in the notes to such
financial statements and subject in the case of unaudited statements, to changes
resulting from year-end and audit adjustments and the absence of footnote
disclosure. All of such financial statements fairly present, in all material
respects and in accordance with GAAP, the consolidated financial position, the
results of operations and cash flows, as the case may be, of Old WCG and its
Consolidated Subsidiaries or the Borrower and its Consolidated Subsidiaries (as
appropriate), at the dates or for the periods indicated.
(b) As of the Amendment No. 9 Closing Date, none of the
Borrower, Holdings, Old WCG, any other Loan Party or any Subsidiary of a Loan
Party is obligated or otherwise liable for any Indebtedness (including, without
limitation, any Guaranty) in a principal
59
amount in excess of $1,000,000, other than as described on Schedule 6.1 hereto
and Indebtedness permitted by Section 6.1(a) and/or Section 6.1(d).
(c) Except as disclosed in the financial statements referred
to in clauses (i) and (ii) of Section 3.6(a) above or the notes thereto, none of
Holdings, the Borrower, Old WCG or any Subsidiary of Holdings or the Borrower
has, as of the Amendment No. 9 Closing Date, any material contingent
liabilities, material long-term commitments or unrealized material losses.
(d) Each annual budget when delivered to the Administrative
Agent pursuant to Section 5.1(g) hereof shall be and is based on good faith
estimates and assumptions believed by Holdings and the Borrower to be reasonable
at the time made (it being understood that such annual budget does not
constitute a representation or warranty as to the future performance of the Loan
Parties and that actual results may vary from the projected results).
Section 3.7. Loan Parties, Subsidiaries and Joint Ventures and
Partnerships. (a) Annexed hereto as Schedule 3.7(a) is a true and complete list
as of the Amendment No. 9 Closing Date, of each Loan Party and each Subsidiary
of a Loan Party showing, as to each, (i) its name, (ii) the jurisdiction in
which it was incorporated or otherwise organized, (iii) in the case of a Loan
Party (other than Holdings) which is a corporation, its authorized
capitalization, the number of shares of its capital stock outstanding and the
ownership of such capital stock, (iv) in the case of a Loan Party which is a
limited partnership, the general partners and limited partners of such Loan
Party and the ownership of its partnership interests, and (v) in the case of a
Loan Party which is a limited liability company, the members of such Loan Party
and the ownership of its limited liability company interests.
(b) As of the Amendment No. 9 Closing Date, no Loan Party owns
any Equity Interest, either directly or indirectly, in any Person other than (i)
another Loan Party or a Subsidiary of a Loan Party (as set forth on Schedule
3.7(a) hereto) and (ii) such Persons as set forth on Schedule 3.7(b) hereto.
(c) As of the Amendment No. 9 Closing Date, no Loan Party is a
general or limited partner in any joint venture or partnership, except as
described in Schedule 3.7(c) hereto.
(d) As of the Amendment No. 9 Closing Date, CGI does not
conduct any operations or own or hold assets with a fair market value in excess
of $250,000.
Section 3.8. Patents, Trademarks, Copyrights and Other Rights. (a) The
Loan Parties possess all patents, patent rights and licenses, trademarks,
service marks, tradenames, trademark rights and licenses, trade secrets,
copyrights, copyright rights and licenses and any other similar rights
(collectively the "Proprietary Rights"), free from burdensome restrictions,
which are material to the conduct of their respective businesses and have duly
recorded, registered or filed applications to record or register their interest
in such material Proprietary Rights in the United States Patent and Trademark
Office or the United States Copyright Office as applicable. Schedule 3.8 is a
true and complete list as of the Amendment No. 9 Closing Date of all Proprietary
Rights registered by, or granted to, a Loan Party, and all Proprietary Rights as
to which an application has been made by a Loan Party, that are owned and used
or held for use by any Loan Party, specifying as to each, as applicable: (i) the
nature of such Proprietary Right;
60
(ii) the Loan Party thereof which owns such Proprietary Right; (iii) the
jurisdictions by or in which such Proprietary Right has been issued or
registered (or, if applicable, in which an application for such issuance or
registration has been filed), including the respective registration or
application numbers and (iv) all licenses, sublicenses and other agreements to
which a Loan Party is a party and pursuant to which any Person is authorized to
use any Proprietary Right including, as to licenses to a Loan Party, the
identity of the licensor, and as to licenses granted by a Loan Party, the
identity of the licensee. To the best of the Loan Parties' knowledge, a Loan
Party is either (1) the sole and exclusive owner (excluding licenses granted by
a Loan Party) of all right, title and interest in and to (free and clear of any
Lien, other than Permitted Encumbrances) the Proprietary Rights described in
Schedule 3.8 hereto and has rights to the use thereof or the material covered
thereby in connection with the services or products in respect of which they are
being used, or (2) the licensee of (free and clear of any Lien, other than
Permitted Encumbrances) the Proprietary Rights described in Schedule 3.8 hereto
and has the rights to the use thereof or material covered thereby in connection
with the services or products in respect of which they are being used.
(b) Except as set forth on Schedule 3.8 hereto, as of the
Amendment No. 9 Closing Date (i) there is no claim, suit, action or proceeding
pending, or to the Loan Parties' knowledge, threatened, against a Loan Party
that involves a claim of infringement or misappropriation of any Proprietary
Right owned and used or held for use by a Loan Party and (ii) no Loan Party has
any knowledge of any existing infringement or misappropriation by any other
Person of any Proprietary Right owned and used or held for use by a Loan Party.
(c) Except as set forth on Schedule 3.8 hereto, (i) there is
no claim, suit, action or proceeding pending, or to the Loan Parties' knowledge,
threatened, against a Loan Party that involves a claim of infringement or
misappropriation of any Proprietary Right owned or used or held for use by a
Loan Party which claim, suit, action or proceeding could reasonably be expected
to be a Material Adverse Effect; and (ii) no Loan Party has any knowledge of any
existing infringement or misappropriation by any other Person of any Proprietary
Right owned and used or held for use by a Loan Party, that could reasonably be
expected to be a Material Adverse Effect.
Section 3.9. Title to Properties. (a) Except as set forth on Schedule
3.9(a) hereto and except for Permitted Encumbrances, the Loan Parties and their
Subsidiaries have good title to (and with respect to Real Property Assets that
are owned, fee simple title thereto), or for leasehold property, valid leasehold
interests in, each of the properties and assets reflected on the financial
statements referred to in Section 3.6(a) hereof, including, without limitation,
the Real Property Assets listed on Schedules 3.19(a) and 3.19(b) hereto (other
than such properties or assets disposed of since the date of such financial
statements as permitted hereunder and excluding the Rights of Way); and all such
properties and assets are free and clear of Liens, except Permitted
Encumbrances.
(b) The Loan Parties own or lease all Rights of Way that are
necessary for the conduct of their businesses, and all such Rights of Way are
valid and enforceable, in either case, except to the extent that the failure to
do so or to be valid and enforceable could not reasonably be expected to result
in a Material Adverse Effect. To its knowledge, no Loan Party is in default
under any Right of Way, has abandoned any Right of Way or has otherwise done or
is aware of
61
any act or omission affecting any Right of Way that would permit the grantor of
such Right of Way to terminate, subordinate or otherwise limit, restrict or
disturb any Loan Party's rights to such Right of Way and that would otherwise
materially and adversely impair or affect such Loan Party's ability to conduct
its business or to use, operate, lease or own any material portion of the
Collateral or the Real Estate Assets.
(c) Each lease of a Real Property Asset (excluding Rights of
Way) to which a Loan Party is a party is in full force and effect except to the
extent that the absence of such lease could not reasonably be expected to result
in a Material Adverse Effect. Each of the Loan Parties has complied in all
respects with all leases to which it is a party and none of the Loan Parties is
aware of any default(s) under any such lease or any conditions which would
constitute an event of default thereunder, except for such non-compliance,
defaults or events of default (in the aggregate) that do not constitute, and
could not reasonably be expected to result in a Material Adverse Effect. Each of
the Loan Parties which is a lessee under any such lease, enjoys peaceful and
undisturbed possession of the asset leased pursuant to such lease, subject only
to Permitted Encumbrances, except to the extent that the failure to enjoy such
possession could not reasonably be expected to result in a Material Adverse
Effect.
(d) No Loan Party is obligated under any right of first
refusal, option or other contractual right to sell, assign or otherwise dispose
of any Real Property Asset or any interest therein except (i) for such rights of
first refusal, options or other contractual rights expressly permitted by
Section 6.2(q) hereof and contracts for the sale of assets permitted by Section
6.6 hereof and (ii) that a Loan Party may be subject to customary recapture
rights or remedies of a landlord or grantor pursuant to the terms and provisions
of a lease or Right of Way, respectively, under which such Loan Party is the
tenant or grantee, as the case may be.
Section 3.10. Litigation; Judgments. (a) Except as set forth on
Schedule 3.10 hereto, there are no actions, suits or other proceedings at law or
in equity by or before any arbitrator or arbitration panel, or any Governmental
Authority (including, but not limited to, matters relating to environmental
liability) or to the best of each Loan Party's knowledge, any investigation by
any Governmental Authority of the affairs of, or any threatened action, suit or
other proceeding against or affecting, any Loan Party or of any of their
respective properties or rights which either (A) could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect, or (B)
relate to this Credit Agreement, any other Loan Document, any of the
transactions contemplated hereby or thereby, or (C) could reasonably be
expected, individually or in the aggregate, to have a material adverse effect on
a material portion of the Collateral or the Mortgaged Real Property Assets. No
Loan Party is in default with respect to any order, writ, injunction, decree,
rule or regulation of any Governmental Authority binding upon such Person, which
default could reasonably be expected to result in a Material Adverse Effect.
(b) As of the Amendment No. 9 Closing Date, there are no
final, nonappealable judgments or decrees in an aggregate amount of one hundred
thousand dollars ($100,000) or more entered by a court or courts of competent
jurisdiction against one or more of the Loan Parties or their Subsidiaries.
Section 3.11. Federal Reserve Regulations. No Loan Party is engaged
principally or as one of its important activities, in the business of extending
credit for the purpose of purchasing
62
or carrying any Margin Stock. No part of the proceeds of the Loans have been or
will be used, directly or indirectly, whether immediately, incidentally or
ultimately (i) to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock, or (ii) for
any other purpose, in each case, violative of or inconsistent with any of the
provisions of any regulation of the Board, including, without limitation,
Regulations T, U and X thereto.
Section 3.12. Investment Company Act. No Loan Party is, or will during
the term of this Credit Agreement be, (i) an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended, or (ii) subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act or any foreign,
federal or local statute or any other Applicable Law of the United States of
America or any other jurisdiction, in each case limiting its ability to incur
indebtedness for money borrowed as contemplated hereby or by any other Loan
Document.
Section 3.13. Taxes. Each Loan Party has timely filed or caused to be
timely filed all United States federal tax returns and other material tax
returns and reports which are required to be filed with any Governmental
Authority after giving effect to applicable extensions. To the best of the Loan
Parties' knowledge, all such returns are complete and accurate in all material
respects. Each Loan Party has paid or has caused to be paid all taxes due, as
shown on said returns or on any assessment received by them, except as permitted
by Section 5.8 hereof. No Loan Party knows of any material additional
assessments or any basis therefor that has not been disclosed to the Lenders in
writing. In the reasonable, good faith opinion of the Loan Parties, the charges,
accruals and reserves on the books of the Loan Parties and their Subsidiaries in
respect of taxes or other governmental charges are adequate.
Section 3.14. Compliance with ERISA . (a) Each Plan has been maintained
and operated in all material respects in accordance with all applicable laws,
including ERISA and the Code, and each Plan intended to qualify under Section
401(a) of the Code so qualifies. Except as set forth on Schedule 3.14(a) hereto
(which, in the event that any underfunding is scheduled, shall contain
information regarding the level of underfunding, or in the case of Plans
maintained by an entity that heretofore was an ERISA Affiliate but which is not
maintained by any Loan Party or present ERISA Affiliate, shall contain other
reasonably detailed information regarding actual or potential liabilities), no
Reportable Event has occurred in the last five years as to any Plan, and the
present value of all benefits under all Plans subject to Title IV of ERISA
determined on a plan termination basis (based on those actuarial assumptions
prescribed by the PBGC for purposes of Section 4044 of ERISA) did not, in the
aggregate, as of the last annual valuation date applicable thereto, exceed the
fair market value of the assets of such Plans allocable to such benefits. No
material liability has been, and no circumstances exist pursuant to which any
such material liability could be, imposed upon any Loan Party or ERISA Affiliate
(i) under Chapter 43 of the Code, Section 409, 502(i), 502(l) or 515 of ERISA,
or, except as set forth on Schedule 3.14(a) hereto, under Title IV of ERISA with
respect to any Plan or, to the Borrower's knowledge, any Multiemployer Plan, or
with respect to any Plan heretofore maintained by any Loan Party or ERISA
Affiliate, or any entity that heretofore was an ERISA Affiliate, or (ii) for the
failure to fulfill any obligation to contribute to any Multiemployer Plan, or
(iii) except as set forth on Schedule 3.14(a) hereto (which shall as to this
clause (iii) contain information regarding the level of liability), with respect
to any Plan or welfare benefit plan
63
(within the meaning of Section 3(1) of ERISA) that provides post-retirement
welfare coverage (other than as required pursuant to Section 4980B of the Code).
All Loan Parties and ERISA Affiliates in the aggregate have not made or been
required to make contributions in any year to Multiemployer Plans with respect
to more than a total of six employees; and (i) neither any Loan Party nor any
ERISA Affiliate has received any notification that any Multiemployer Plan is in
reorganization or has been terminated within the meaning of Title IV of ERISA
and (ii) to the Borrower's knowledge, no Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated and (iii) the aggregate
liabilities of the Loan Parties and their ERISA Affiliates to all Multiemployer
Plans in the event of a complete withdrawal therefrom, as of the close of the
most recent fiscal year of each such plan then ended, would not be material.
(b) The execution, delivery and performance of the Loan
Documents and the consummation of the transactions contemplated hereby and
thereby does not involve any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
Section 3.15. Agreements. (a) No Loan Party is in breach of, or default
with respect to, the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or instrument to
which it is a party or subject or by which it or any of its property or assets
is bound in any respect and no Loan Party has any knowledge of any breach,
default or anticipated by any other parties thereto, which breach or default, in
either case, either individually or when aggregated with all other breaches or
defaults, could result in a Material Adverse Effect.
(b) Schedule 3.15 hereto is a true and complete listing as of
the Amendment No. 9 Closing Date of (i) all credit agreements, indentures, and
other agreements related to any Indebtedness for borrowed money of any Loan
Party or any Subsidiary of a Loan Party, other than the Loan Documents, (ii) all
joint venture agreements to which any Loan Party or any Subsidiary of a Loan
Party is a party and (iii) all Material Agreements.
Section 3.16. Disclosure. Neither this Credit Agreement nor any other
Loan Document nor any other agreement, document, certificate, report, statement
or information furnished to any of the Agents, the Issuing Banks or any Lender
by or on behalf of any Loan Party in connection with any of the Loan Documents
or any of the transactions contemplated hereby, at the time it was furnished or
delivered (when taken together with all other agreements, documents,
certificates, reports, statements and information then in existence furnished by
or on behalf of any Loan Party), contained any untrue statement of a material
fact regarding the Loan Parties or their Subsidiaries or, omitted to state a
material fact necessary under the circumstances under which it was made in order
to make the statements contained herein or therein not misleading; provided,
that, with respect to projected financial information, the Loan Parties
represent only that such information was prepared in good faith based upon
assumptions believed by the Loan Parties to be reasonable at the time made (it
being understood that such projected financial information does not constitute a
representation or warranty as to the future performance of the Loan Parties and
that actual results may vary from such projected financial information). There
is no fact known to any Loan Party (other than general industry conditions, or
facts which have been disclosed to the Lenders in writing) that, individually or
in the aggregate, could reasonably be expected in the future to be or result in
a Material Adverse Effect.
64
Section 3.17. Environmental Matters. Except as set forth on Schedule
3.17 hereto:
(a) There are no past, pending, or threatened Environmental
Claims against, affecting or with respect to any Loan Party or any Subsidiary of
any Loan Party or any Premises or portion thereof, and no Loan Party nor any
Subsidiary of any Loan Party is aware of any facts or circumstances which could
reasonably be expected to form the basis for any such Environmental Claim,
except to the extent that any such Environmental Claims, individually or in the
aggregate, would not be a Material Adverse Effect;
(b) No Premises or portion thereof is currently or, while
owned or operated by a Loan Party or a Subsidiary of a Loan Party, was formerly
used for the handling, storage, treatment, disposal, manufacture, processing or
generation of Hazardous Materials in violation of any Environmental Laws or
Environmental Permits, except to the extent that any such violation,
individually or in the aggregate, would not be a Material Adverse Effect;
(c) Each Loan Party, each Subsidiary of any Loan Party and to
the knowledge of each Loan Party and each Subsidiary of a Loan Party, any
tenants, operators or occupants of any Premises, have obtained and hold all
necessary Environmental Permits, except to the extent that any failure to hold
any such Environmental Permit, individually or in the aggregate, would not be a
Material Adverse Effect;
(d) Each Loan Party and each Subsidiary of each Loan Party is
in compliance with all terms, conditions and provisions of all applicable (1)
Environmental Permits, and (2) Environmental Laws, except to the extent that any
such non-compliance, individually or in the aggregate, would not be a Material
Adverse Effect;
(e) No Releases of Hazardous Materials have occurred at, from,
in, to, on, or under any Premises while owned or operated by a Loan Party or a
Subsidiary of a Loan Party, and no Hazardous Materials are present in, on, about
or migrating to or from any Premises or portion thereof, while owned or operated
by a Loan Party or a Subsidiary of a Loan Party, in violation of any
Environmental Laws or Environmental Permits except to the extent that any such
violations, individually or in the aggregate, would not be a Material Adverse
Effect;
(f) Neither any Loan Party nor any Subsidiary of any Loan
Party, nor any predecessor of any Loan Party or Subsidiary of any Loan Party,
nor any entity previously owned by any Loan Party or Subsidiary of any Loan
Party, has transported or arranged for the treatment, storage, handling,
disposal, or transportation of any Hazardous Material to any location (other
than any Premises) which could result in an Environmental Claim against any Loan
Party or any Subsidiary of any Loan Party, except to the extent that any such
activity, individually or in the aggregate, would not be a Material Adverse
Effect;
(g) No Premises is a current, or to the knowledge of any Loan
Party or any Subsidiary of any Loan Party, a proposed Environmental Clean-up
Site, or is listed, proposed or nominated for listing on the National Priorities
List pursuant to CERCLA or any other Environmental Law, except to the extent as
would not be a Material Adverse Effect; and
(h) To the knowledge of any Loan Party, there are no (1)
underground storage tanks (active or abandoned), (2) urea formaldehyde
insulation, (3) polychlorinated biphenyl
65
containing equipment, (3) asbestos-containing material, or (4) lead-based paint,
located at any Premises, except to the extent that the presence of any of the
foregoing, individually or in the aggregate, would not be a Material Adverse
Effect.
Section 3.18. Compliance with Laws. (a) No Loan Party nor any Real
Property Asset is in violation of any Applicable Law (including, without
limitation, any Environmental Law), any Environmental Permit or any restrictions
of record or agreements affecting any Real Property Asset, except for such
violations which in the aggregate are not reasonably likely to result in a
Material Adverse Effect.
(b) No Loan Party nor any Real Property Asset is in violation
of any zoning or building law, ordinance, rule, regulation or restriction
affecting a Real Property Asset or any building permit, including, without
limitation, any certificate of occupancy, where such violation could reasonably
be expected to result in a Material Adverse Effect.
(c) The use of the proceeds of the Loans as contemplated by
Section 5.15 hereof, the issuance, amendment, renewal and/or extension of the
Letters of Credit hereunder, and the performance of the Loan Documents will not
violate any Applicable Law.
Section 3.19. Real Property. (a) Schedule 3.19(a) is a true and
complete list as of the Amendment No. 9 Closing Date of each Real Property Asset
(excluding Rights of Way) owned by a Loan Party setting forth for each such
owned Real Property Asset (i) the location (by state, county and street address
(or in lieu of a street address, such other identification of such real property
sufficient to identify it), (ii) the Loan Party which owns such Real Property
Asset, (iii) any lease(s) to which such Real Property Asset is subject and (iv)
if applicable, the name and address of the lessee of such Real Property Asset.
(b) Schedule 3.19(b) is a true and complete list as of the
Amendment No. 9 Closing Date of each Real Property Asset (excluding Rights of
Way) leased by a Loan Party, setting forth for each such leased Real Property
Asset (i) the location (by state, county and street address (or in lieu of a
street address, such other identification of such leased property sufficient to
identify it), (ii) the Loan Party which leases such Real Property Asset, (iii)
the name and address of the owner/lessor of each such Real Property Asset, (iv)
the term of the lease and the annual rental obligation to which each such Real
Property Asset is subject, (v) any sublease(s) to which such Real Property Asset
is subject and (vi) if applicable, the name and address of any sublessee of such
Real Property Asset.
(c) To the respective knowledge of each of the Loan Parties,
after due inquiry and investigation, Schedule 1 attached to that certain Rights
of Way Certificate dated as of October 15, 2002 delivered to the Administrative
Agent pursuant to Section 6(GG) of Amendment No. 9, is a true and complete list
as of the Amendment No. 9 Closing Date of each Right of Way, setting forth for
each such Right of Way (i) the location (by state, county and street address (or
in lieu of a street address, such other identification of such Right of Way as
is available to identify it)), (ii) the Loan Party which holds such Right of Way
and (iii) the name of the grantor of such Right of Way.
66
Section 3.20. Mortgages. (a) To the best of the Loan Parties'
knowledge, (i) each of the Mortgages (excluding the Second Mortgage) executed
prior to the Amendment No. 9 Closing Date creates in favor of the Administrative
Agent, for the benefit of the Secured Parties, a legal, valid and enforceable
first priority Lien on all of the Loan Parties' respective right, title and
interest in and to the Real Property Assets described therein and the proceeds
thereof, subject only to Permitted Encumbrances; and (ii) each of such Mortgages
constitutes a fully perfected first priority Lien on, and fully perfected first
priority security interest in, all right, title and interest of the Loan
Parties' in the Real Property Assets described therein and the proceeds thereof,
in each case subject only to Permitted Encumbrances.
(b) The Second Mortgage, when executed and delivered, will
create in favor of the Administrative Agent, for the benefit of the Secured
Parties, a legal, valid and enforceable second priority Lien on all of the Loan
Parties' respective right, title and interest in and to the Real Property Assets
described therein and the proceeds thereof, subject only to Permitted
Encumbrances. When the Second Mortgage is filed in the real estate records of
the county of Tulsa, Oklahoma, the proper amount of mortgage recording or
similar taxes (if any) are paid and when the UCC-1 financing statements relating
to fixtures are duly filed with the real estate records of the county of Tulsa,
Oklahoma, the Second Mortgage shall constitute a fully perfected Lien on, and
fully perfected second priority security interest in, all right, title and
interest of the Loan Parties' in the Real Property Assets described therein and
the proceeds thereof, in each case subject only to Permitted Encumbrances.
(c) Each of the Mortgages (excluding the Second Mortgage) to
be delivered on or after the Amendment No. 9 Closing Date, when executed and
delivered, will create in favor of the Administrative Agent, for the benefit of
the Secured Parties, a legal, valid and enforceable first priority Lien on all
of the Loan Parties' respective right, title and interest in and to the Real
Property Assets described therein and the proceeds thereof, subject only to
Permitted Encumbrances. When each of such Mortgages are filed in the appropriate
offices specified by a Loan Party, the proper amount of mortgage recording or
similar taxes (if any) are paid and when the UCC-1 financing statements relating
to fixtures are duly filed with the filing offices specified by a Loan Party,
each of such Mortgages shall constitute fully perfected first priority Lien on,
and fully perfected first priority security interest in, all right, title and
interest of the Loan Parties' in the Real Property Assets described therein and
the proceeds thereof, in each case subject only to Permitted Encumbrances.
Section 3.21. Existing Loans; Existing Hedging Agreements. (a) As of
the Amendment No. 9 Closing Date, the aggregate outstanding principal amount of
the Existing Loans is $375,000,000 (after giving effect to the $350 million
payment of the Existing Loans which is a condition precedent to the
effectiveness of Amendment No. 9).
(b) Annexed hereto as Schedule 3.21(b) is a true and complete
list, as of the Amendment No. 9 Closing Date, of all Hedging Agreements then in
effect entered into by a Loan Party.
Section 3.22. Organizational Documents. The documents delivered
pursuant to Section 5(D) of Amendment No. 9 constitute, as of the Amendment No.
9 Closing Date, all of the organizational documents (together with all
amendments and modifications thereof) of the
67
Loan Parties as of the Amendment No. 9 Closing Date. The Loan Parties represent
that they have delivered to the Administrative Agent true, correct and complete
copies of each of the documents set forth in such Section 5(D) of Amendment No.
9.
Section 3.23. Insurance. The Loan Parties currently maintain insurance
in such amounts, covering such risks and liabilities and with insurers having an
A.M. Best policyholders' rating of not less than A-V, or an S&P rating of A or
the equivalent thereto, as is customary for companies of the same or similar
size in the same or similar businesses. All premiums that are due and payable in
respect of such insurance have been paid.
ARTICLE 4
CONDITIONS PRECEDENT TO THE ISSUANCE OF EACH LETTER OF CREDIT,
AND TO CERTAIN AMENDMENTS TO AN OUTSTANDING LETTER OF CREDIT
The obligation of an Issuing Bank to issue each Letter of Credit, or to
amend an outstanding Letter of Credit to increase the face amount thereof, and
of the Revolving Letter of Credit Lenders to participate in such Letter of
Credit, are subject to the following conditions precedent:
(a) Notice; L/C Certificate. The Administrative Agent and the
applicable Issuing Bank shall have received a notice with respect to the
issuance or amendment of such Letter of Credit (as applicable) as required by
Section 2.4 hereof, and an L/C Certificate dated as of the date of issuance or
amendment (as applicable) with respect to such Letter of Credit duly executed by
a Financial Officer of the Borrower.
(b) Representations and Warranties. The representations and
warranties set forth in Article 3 hereof, in the other Loan Documents or in any
certificate or other document furnished by, or on behalf of, a Loan Party
pursuant to, or in connection with, this Credit Agreement or any other Loan
Document, shall be true and correct in all material respects on and as of the
date of each issuance or amendment to increase the face amount, of a Letter of
Credit hereunder (except to the extent that such representations and warranties
expressly relate to an earlier date) with the same effect as if made on and as
of such date.
(c) No Event of Default. On the date of each issuance or
amendment to increase the face amount, of a Letter of Credit hereunder, no
Default or Event of Default shall have occurred and be continuing, nor shall any
such event occur by reason of the requested issuance or amendment.
(d) Cash Collateral. The Administrative Agent shall have
received, and then hold, cash collateral (in Dollars, in immediately available
funds) in an amount equal to 105% of the then current aggregate amount of L/C
Exposure (including, without limitation, L/C Exposure attributable to the
Letters of Credit then being requested to be issued or amended (as applicable))
which cash collateral is to be held pursuant to and in accordance with Section
2.4(i) hereof.
Each request for the issuance, or amendment to increase the amount, of
a Letter of Credit hereunder shall be deemed to be a representation and warranty
by the Borrower on the date of
68
such issuance or amendment (as applicable) of a Letter of Credit hereunder as to
the matters specified in paragraphs (b) and (c) of this Article 4.
ARTICLE 5
AFFIRMATIVE COVENANTS
From the date hereof and for so long as the Revolving Letter of Credit
Commitments shall be in effect, any amount remains outstanding with respect to
any Loan, any Letter of Credit shall remain outstanding, or any Obligation
remains unpaid or unsatisfied, each Loan Party agrees that, unless the Required
Lenders shall otherwise consent in writing, each of them will, and will cause
each of its Subsidiaries (other than PowerTel) to:
Section 5.1. Financial Statements and Other Information. Furnish or
cause to be furnished to the Agents, the Issuing Banks and each of the Lenders
(except as otherwise explicitly provided in this Section 5.1):
(a) As soon as available, but in any event within ninety (90)
days after the end of each fiscal year of Holdings, (i) the audited,
consolidated balance sheet of Holdings and its Consolidated Subsidiaries, in
each case as at the end of, and the related audited statements of operations,
stockholders' equity and cash flows for, such fiscal year (including Segment
Reporting), and the corresponding figures as at the end of, and for, the
preceding fiscal year, accompanied by an opinion of Ernst & Young LLP, or other
independent public accountant of recognized national standing as shall be
retained by Holdings and be reasonably satisfactory to the Required Lenders,
which opinion shall be prepared in accordance with generally accepted auditing
standards relating to reporting and which opinion shall contain no material
exceptions or qualifications except for qualifications relating to accounting
changes in response to FASB releases or other authoritative pronouncements;
provided, however, that with respect to the report on the financial statements
for the fiscal year ending December 31, 2002 only, such report may contain a
going concern qualification; (ii) supplemental unaudited balance sheets and
related unaudited statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal year, setting forth in tabular form in each
case the figures for the previous year for Holdings and the consolidating
adjustments with respect thereto; (iii) segment reporting of EBITDA (setting
forth in reasonable detail the calculation thereof) with respect to each
business segment of Holdings and its Subsidiaries (which business segments shall
be consistent with business segments reported on pursuant to clause (i) of this
Section 5.1(a) or shall be otherwise agreed to by the Administrative Agent in
writing (such agreement not to be unreasonably withheld)); and (iv) a comparison
of actual financial performance (as set forth on the income statement) of
Holdings and its Consolidated Subsidiaries, for such year to the projected
financial performance of Holdings and its Consolidated Subsidiaries for such
year, as set forth in the budget delivered to the Administrative Agent and the
Lenders (pursuant to Section 5.1(g) hereof in the case of any fiscal year after
2002), together with an explanation of any material variances;
(b) As soon as available, but in any event within forty-five
(45) days after the end of each of the first three fiscal quarters of each of
the fiscal years of Holdings, (i) the unaudited, consolidated balance sheet of
Holdings and its Consolidated Subsidiaries as at the end of, and the related
unaudited, consolidated statements of operations and cash flows for, such
69
quarter, and for the portion of the fiscal year through the end of such quarter,
and the corresponding figures as at the end of such quarter, and for the
corresponding period, in the preceding fiscal year (including Segment
Reporting), together with a certificate signed by a Financial Officer of
Holdings, on behalf of Holdings, to the effect that such financial statements,
while not examined by independent public accountants, reflect, in the opinion of
Holdings, all adjustments necessary to present fairly in all material respects,
the financial position of Holdings and its Consolidated Subsidiaries as at the
end of the fiscal quarter and the results of operations for the quarter then
ended in conformity with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of any footnote disclosure; (ii) supplemental
unaudited balance sheets and related unaudited statements of operations and cash
flows as of the end of and for such fiscal quarter, setting forth in tabular
form in each case the figures for the previous quarter for Holdings and the
consolidating adjustments with respect thereto; (iii) segment reporting of
EBITDA (setting forth in reasonable detail the calculation thereof) with respect
to each business segment of Holdings and its Subsidiaries (which business
segments shall be consistent with business segments reported pursuant to clause
(i) of Section 5.1(a) or shall be otherwise agreed to by the Administrative
Agent in writing (such agreement not to be unreasonably withheld)); and (iv) a
comparison of actual financial performance (as set forth on the income
statement) of Holdings and its Consolidated Subsidiaries for such quarter and
for the portion of the fiscal year through the end of such quarter, to the
projected financial performance of Holdings and its Consolidated Subsidiaries
for such quarter and for such portion of the year, respectively, as set forth in
the applicable budget delivered to the Administrative Agent and the Lenders
(pursuant to Section 5.1(g) hereof in the case of any fiscal year after 2002),
together with an explanation of any material variances;
(c) Within twenty (20) Business Days after the end of each
calendar month, (i) the unaudited, consolidated balance sheet of Holdings and
its Consolidated Subsidiaries as at the end of, and the related unaudited,
consolidated statements of operations and cash flows for, such month, and for
the portion of the fiscal year of Holdings through the end of such month,
together with a certificate signed by a Financial Officer of Holdings, on behalf
of Holdings, to the effect that such financial statements, while not examined by
independent public accounts, reflect, in the opinion of Holdings, all
adjustments necessary to present fairly in all material respects, the financial
position of Holdings and its Consolidated Subsidiaries as at the end of the
calendar month and the results of operations for the month then ended in
conformity with GAAP consistently applied, subject to normal year-end audit
adjustments, quarter-end adjustments and the absence of any footnote disclosure;
and (ii) a comparison of actual financial performance (as set forth on the
income statement) of Holdings and its Consolidated Subsidiaries for such month
and for the portion of fiscal year through the end of such month, to the
projected financial performance of Holdings and its Consolidated Subsidiaries
for such month and for such portion of the year, respectively, as set forth in
the applicable budget to the Administrative Agent and the Lenders (delivered
pursuant to Section 5.1(g) hereof in the case of any fiscal year after 2002),
together with an explanation of any material variances;
(d) Simultaneously with the delivery of the statements
referred to in paragraphs (a) and (b) of this Section 5.1, a certificate of a
Financial Officer of Holdings in form and substance reasonably satisfactory to
the Administrative Agent (i) stating whether or not such Financial Officer has
knowledge, after due inquiry, of any condition or event which would constitute a
Default or Event of Default and, if so, specifying each such condition or event
and
70
the nature thereof and what action any Loan Party is taking or proposes to take
with respect thereto, (ii) demonstrating in reasonable detail compliance with
the provisions of Sections 6.8 through 6.11 hereof, and including the amount of
Consolidated Capital Expenditures made pursuant to Section 6.8(a) hereof and
those made pursuant to Section 6.8(b) hereof; and (iii) stating whether any
change in GAAP or the application thereof has occurred since the date of
Holdings' and the Borrower's audited financial statements referred to in Section
3.6 hereof and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(e) Together with each set of audited financial statements
required by paragraph (a) above, a letter from the independent public
accountants rendering the report thereon stating whether, in connection with
their audit, anything has come to their attention which would cause them to
believe that any Default or Event of Default with respect to accounting matters
existed on the date of such financial statements, and if such a condition or
event has come to their attention, specifying the nature and period, if known,
of existence thereof;
(f) Promptly upon their becoming available, copies of all
financial audits, studies, reports or evaluations prepared for, or submitted to,
any of the Loan Parties by any outside professional firm or service, including,
without limitation, any comment letter submitted by Holdings' or the Borrower's
accountants to management in connection with their annual audit and management's
and/or a Loan Party's response thereto, if any;
(g) (i) No later than ten (10) days after approval by the
Board of Directors of Holdings, a preliminary consolidated budget of Holdings
and its Consolidated Subsidiaries for each fiscal year of Holdings (including,
without limitation, projected consolidated balance sheets, statements of
projected operations and cash flows as of the end of and for such fiscal year
and segment information with respect to each of Holdings' and its Subsidiaries'
respective business segments consistent with the business segments reported on
pursuant to Section 5.1(a) above or as otherwise agreed to by the Administrative
Agent in writing, together with projected EBITDA (and the calculation thereof in
reasonable detail) for such business segments) provided, that the parties hereby
agree that any budget delivered in the time frame set forth above, shall be
subject to year end adjustments; and provided, further, that in all events, no
later than ninety (90) days after the commencement of each fiscal year of
Holdings, Holdings shall deliver a final budget (in the form required above) for
such fiscal year; and (ii) promptly when available, any significant revisions of
any budget delivered pursuant to clause (i) above;
(h) Promptly upon their becoming available, copies of all
registration statements, proxy statements, notices, reports and other material
which Holdings, the Borrower or any other Loan Party shall file with any
securities exchange or with the Securities and Exchange Commission or any
successor agency; provided, that quarterly or annual reports filed with the
Securities and Exchange Commission by Holdings on Form 10-K or Form 10-Q, to the
extent that such reports are available, at no cost or expense, at
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇.▇▇▇▇ (or any successor website) shall not be required
to be delivered pursuant to this Section 5.1(h); and provided, further, that in
lieu of providing hard copies of the documents required to be delivered pursuant
to this Section 5.1(h), if such documents are available, at no cost or expense,
on a
71
public website, the Loan Parties may deliver a written notice specifying the
documents available and the applicable website;
(i) Promptly upon the mailing thereof to the shareholders of
Holdings, copies of all financial statements, reports, proxy statements and
other material written communications so mailed; provided, that quarterly or
annual reports filed with the Securities and Exchange Commission by Holdings on
Form 10-K or Form 10-Q, to the extent that such reports are available, at no
cost or expense, at ▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇.▇▇▇▇ (or any successor website)
shall not be required to be delivered pursuant to this Section 5.1(i); and
provided, further, that in lieu of providing hard copies of the documents
required to be delivered pursuant to this Section 5.1(i), if such documents are
available, at no cost or expense, on a public website, the Loan Parties may
deliver a written notice specifying the documents available and the applicable
website;
(j) As soon as possible and, in any event, within ten (10)
days after a Loan Party or an ERISA Affiliate knows or has reason to know of the
occurrence of any of the following, a certificate of an Authorized Officer of
the Borrower setting forth the full details as to such occurrence and the
action, if any, that such Loan Party or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be given or
filed by such Loan Party, the Plan Administrator or such ERISA Affiliate to or
with the PBGC or any other Governmental Authority, or a Plan or Multiemployer
Plan participant, and any notices received by such Loan Party or ERISA Affiliate
from the PBGC or any other Governmental Authority: that a Reportable Event has
occurred (except to the extent that the Borrower has previously delivered a
certificate and notices (if any) concerning such event pursuant to the next
clause hereof); that a contributing sponsor (as defined in Section 4001(a)(13)
of ERISA) of a Plan subject to Title IV of ERISA is subject to the advance
reporting requirement of PBGC Regulation Section 4043.61 (without regard to
subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
..64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur with respect to such Plan within the following 30 days; that an
accumulated funding deficiency, within the meaning of Section 412 of the Code or
Section 302 of ERISA, has been incurred or an application may be or has been
made for a waiver or modification of the minimum funding standard (including any
required installment payments) or an extension of any amortization period under
Section 412 of the Code or Section 303 or 304 of ERISA with respect to a Plan or
Multiemployer Plan; that any contribution required to be made with respect to a
Plan or Multiemployer Plan has not been timely made; that a Plan or
Multiemployer Plan has been or may be terminated, reorganized, partitioned or
declared insolvent under Title IV of ERISA; that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan which is
subject to Title IV of ERISA; that a proceeding has been instituted pursuant to
Section 515 of ERISA to collect a delinquent contribution to a Multiemployer
Plan; that a Loan Party or an ERISA Affiliate will or may incur any liability
(including any indirect, contingent, or secondary liability) to or on account of
the termination of or withdrawal from a Plan or Multiemployer Plan under Section
4062, 4063, 4064, 4069, 4201, 4204, or 4212 of ERISA or with respect to a Plan
under Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409, 502(i)
or 502(1) of ERISA or with respect to a group health plan (as defined in Section
4980B(g)(2) of the Code) under Section 4980B of the Code; or that a Loan Party
or Subsidiary of a Loan Party may incur any material liability pursuant to any
employee welfare benefit plan (as defined in Section 3(1) of ERISA) that
provides benefits to retired
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employees or other former employees (other than as required by Section 601 of
ERISA) or any Plan;
(k) Promptly and in any event within five (5) Business Days
after receipt of any material notice or correspondence from any company, or
agent for any company, providing insurance coverage to any Loan Party relating
to any loss, damage or injury in excess of $1,000,000 to any tangible property
of any Loan Party, copies of such notices and/or correspondence;
(l) Without limiting any Loan Party's other obligations to
give notice under the Loan Documents, within forty-five (45) days after the end
of each calendar quarter, furnish to the Administrative Agent and FTI, (i) a
certificate of a Financial Officer of Holdings (which certificate shall be in a
form reasonably satisfactory to the Administrative Agent) that shall set forth
(A) each sale or other disposition of any asset of a Loan Party effected during
such quarter pursuant to Sections 6.6(f), 6.6(i) and 6.6(n) which sale or
disposition generated Net Cash Proceeds in excess of $250,000 and (B) the sales
price with respect to each such asset sold or disposed of and the aggregate Net
Cash Proceeds received during such quarter from all such sales and dispositions
of any assets; and (ii) such information required by Section 5.11(d) hereof and
Section 6 of the Security Agreement.
(m) Furnish to the Administrative Agent and FTI, no later than
fifteen (15) Business Days after the end of each calendar month, (i) a true and
complete list of any and all cash deposits or pledges in excess of $25,000, made
by the Loan Parties to third parties; (ii) a true and complete list of all
Deposit Accounts and Securities Accounts or other similar accounts or
instruments held by any Loan Party and including the following information: the
correct legal name of the institution where such account is maintained, the Loan
Party in whose name the account is maintained, the account number and the
balance (which may not include interest income) as of the end of the immediately
preceding calendar week and including a representation and warranty that to the
extent required by the Loan Documents, all such Deposit Accounts, Securities
Accounts, other accounts and instruments have been pledged to the Administrative
Agent (for the benefit of itself and the Secured Parties) (all of the foregoing
information shall, in each case, be in form and substance reasonably
satisfactory to the Administrative Agent and FTI); and (iii) a statement,
certified by a Financial Officer of Holdings or the Borrower, setting forth the
amount of the aggregate cash balances in all Controlled Deposit Accounts;
(n) Together with each set of audited financial statements
required by paragraph (a) of this Section 5.1, furnish to the Administrative
Agent, an updated Perfection Certificate for each Loan Party or a certificate
from an Authorized Officer of the Borrower certifying that there has been no
change in the information set forth on the Perfection Certificate most recently
delivered by or on behalf of such Loan Party and that all such information
remains true and correct in all respects;
(o) Promptly, and in any event, within five (5) Business Days
after the execution thereof, deliver to the Administrative Agent a fully
executed, true and complete copy of any amendment, modification, supplement or
waiver to any of the OTC Documents; and
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(p) From time to time such additional information regarding
(i) the operations, business affairs and/or financial condition of any of the
Loan Parties or any of their respective Subsidiaries, (ii) the compliance with
the terms of any Loan Document, (iii) any Real Property Asset or (iv) any of the
Collateral, in each case, as any of the Agents, any Issuing Bank or any Lender
(acting through the Administrative Agent) may reasonably request including,
without limitation, copies of all management projections prepared at the
reasonable request of any of the Agents; and provided, that with respect to any
request for information that is not then in existence, such information shall
not be unduly burdensome for the Loan Parties to compile or prepare.
All other notices and information required to be provided to the
Issuing Banks and/or the Lenders pursuant to this Section 5.1 shall be deemed
delivered pursuant to this Section 5.1 when delivered to the Administrative
Agent; provided that the Borrower shall deliver paper copies of any notice or
information to any Issuing Bank or Lender directly that requests such delivery.
Section 5.2. Existence; Compliance with Laws. (a) Except as otherwise
expressly permitted by Section 6.6 hereof, do or cause to be done all things
necessary (i) to preserve, renew and keep in full force and effect its
existence, Proprietary Rights, licenses, permits, privileges, franchises,
certificates, authorization, accreditations, easements, rights of way and other
rights, consents and approvals in each case, except to the extent any failure to
do so (individually or in the aggregate) could not reasonably be expected to
result in a Material Adverse Effect) and (ii) to comply in all respects with all
applicable statutes, ordinances, laws, rules, regulations and orders of, and all
applicable restrictions or requirements imposed by, any Governmental Authority
(including, without limitation, Environmental Laws, Environmental Permits, all
zoning and building codes and ERISA) or any other Requirements except to the
extent any failure to so comply (individually or in the aggregate) could not
reasonably be expected to result in a Material Adverse Effect; provided, in each
case, that the applicable Loan Party or Subsidiary of a Loan Party shall have
set aside on its books reasonable and appropriate reserves (the presentation of
which is segregated to the extent required by GAAP) with respect thereto if such
reserves are required by GAAP.
(b) Obtain or make all further authorizations, approvals,
orders, consents, licenses, permits, registration or filings from or with any
Governmental Authority and take any other action required for the performance by
any Loan Party of this Credit Agreement and the other Loan Documents to which it
is a party.
Section 5.3. Maintenance of Properties. Keep its tangible properties
(including, without limitation, all Real Property Assets) in good repair,
working order and condition (ordinary wear and tear excepted) and, from time to
time (i) subject to the terms hereof, make all necessary and proper repairs,
renewals, replacements, additions and improvements thereto and (ii) comply at
all times with the provisions of all leases and other material agreements to
which it is a party so as to prevent any loss or forfeiture thereof or
thereunder except to the extent any failure to so comply (individually or in the
aggregate) could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.4. Notice of Material Events. (a) Promptly upon, but in any
event within fifteen (15) Business Days after, an Authorized Officer or any
other executive officer of any
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Loan Party obtaining knowledge of (i) any Default or Event of Default, (ii) any
Material Adverse Effect, (iii) any action, event, development, condition or
circumstance which could reasonably be expected to have a Material Adverse
Effect, (iv) any other event which could reasonably be expected to materially
decrease the value of the Collateral or the Real Property Assets, (v) any Person
giving any written notice to any Loan Party or taking any other action to
enforce remedies with respect to a claimed default or event or condition of the
type referred to in paragraphs (g), (h) or (i) of Article 7 hereof, or (vi) any
material portion of the Collateral or any material portion of the Mortgaged Real
Property Assets is damaged or destroyed, give written notice thereof to the
Administrative Agent and each Lender specifying the nature and period of
existence of any such condition or event, or specifying the notice given or
action taken by such Person and the nature of such claimed default or event or
condition, and what action any Loan Party has taken, is taking and proposes to
take with respect thereto.
(b) Promptly upon, but in any event within fifteen (15)
Business Days after, an Authorized Officer or other executive officer of any
Loan Party obtains knowledge of (i) the institution of, or threat of, any
action, suit, proceeding, investigation or arbitration by any Governmental
Authority or other Person against or affecting any Loan Party or any of its
assets (excluding any Condemnation Event with respect to any Real Property Asset
which would result in Condemnation Proceeds of less than $1,000,000) and (ii)
any material development in any such action, suit, proceeding, investigation or
arbitration (whether or not previously disclosed to the Administrative Agent
and/or the Lenders and including, without limitation, any Environmental Claim),
which, in the case of clause (i) or (ii) above, could reasonably be expected to
have a Material Adverse Effect, give written notice thereof to the
Administrative Agent and the Lenders and provide such other information as may
be available to it to enable the Administrative Agent and the Lenders to
evaluate such matters; and, in addition to the requirements set forth in this
subsection (c), such Loan Party upon request shall promptly give notice to the
Administrative Agent and the Lenders of the status of any action, suit,
proceeding, investigation or arbitration covered by a report delivered to the
Administrative Agent and the Lenders pursuant to this subsection (c) above and
provide such other information as may be reasonably available to it to enable
the Administrative Agent and the Lenders to evaluate such matters.
Section 5.5. Insurance. (a) Keep its assets which are of an insurable
character (including, without limitation, all Real Property Assets) insured at
all times with financially sound and reputable insurance companies in accordance
with Section 3.23 hereof, against such risks and in such amounts as is customary
for companies of the same or similar size in the same or similar businesses. All
such insurance maintained by a Loan Party shall (i) contain a Lender's Loss
Payable Endorsement in favor of the Administrative Agent on behalf of the
Secured Parties in all loss or damage insurance policies and have a severability
of interest clause in all liability insurance policies, (ii) provide that no
cancellation (except for specific policy provisions providing for automatic
termination for acts of fraud committed by the insured), material reduction in
amount or material change in coverage thereof shall be effective until at least
thirty (30) days after written notice to the Administrative Agent thereof, (iii)
name the Administrative Agent (for the benefit of the Secured Parties) as loss
payee for physical damage insurance with respect to property which constitutes
Collateral or a Mortgaged Real Property Asset as to which a Lien has been
granted to the Administrative Agent, with the right, if an Event of Default has
occurred and is then continuing, to adjust losses and claims with respect to
such property, and as
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an additional insured for liability insurance (provided, that with respect to
property to which a Lien permitted hereunder has been granted to another
creditor, such other creditor may also be named as loss payee, with payment to
be made as their interests may appear and as an additional insured, with the
Administrative Agent), (iv) state that none of the Agents, the Issuing Banks,
the Lenders, or any other Secured Party shall be responsible for premiums,
commissions, club calls, assessments or advances, and (v) be reasonably
satisfactory in all other respects (including deductibles) to the Administrative
Agent.
(b) Use its commercially reasonable efforts to obtain, in any
new insurance or any renewal of any insurance in effect on the Amendment No. 9
Closing Date, a waiver of all rights of set-off, counterclaim, deduction or
subrogation against the Agents and the other Secured Parties.
(c) Upon the request of the Administrative Agent, furnish to
the Administrative Agent, an updated schedule describing all insurance
maintained by the Loan Parties, which schedule shall set forth, for each
insurance policy, the policy number, the type of coverage, the policy limits and
deductibles, the insurer (and reinsurers, if applicable) and the expiration
date.
(d) Furnish to the Administrative Agent, to the extent not
previously delivered, original certificates of insurance for any property,
liability or umbrella insurance maintained (and as renewed) by a Loan Party
which certificates shall comply with the requirements of this Section 5.5 set
forth above and contain signatures of duly authorized representatives of the
insurer, at all times prior to policy termination, cessation or cancellation of
such insurance.
(e) In addition to insurance required to be maintained
pursuant to Section 5.5(a) above, maintain such other insurance or self
insurance as may be required by Applicable Law or any agreement to which any
Loan Party is a party (other than the Loan Documents), except to the extent the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
Section 5.6. Books and Records. (a) Maintain or cause to be maintained
at all times, in accordance with GAAP, true and complete books and records of
its financial operations.
(b) Provide the Agents and the Issuing Banks and their
respective representatives (at the Borrower's expense) or any Lender and its
representatives (at such Lender's expense provided no Event of Default has
occurred and is continuing, otherwise at the Borrower's expense) access to such
books and records and to any of its properties or assets upon reasonable prior
notice and during regular business hours in order that such Agent, such Issuing
Bank and/or such Lender (as applicable) may make such audits and examinations
and make abstracts from such books, accounts, records and other papers of a Loan
Party or a Subsidiary of a Loan Party pertaining to the Collateral or any Real
Property Asset, and upon reasonable prior notification to the Borrower, permit
such Agent, such Issuing Bank or such Lender (as applicable) or its respective
representatives to discuss the affairs, finances and accounts with, and be
advised as to the same by, officers and independent accountants, all as such
Agent, such Issuing Bank or such Lender (as applicable) may deem reasonably
appropriate for the purpose of
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verifying any report delivered by any Loan Party to any of the Agents, the
Issuing Banks and/or the Lenders pursuant to this Credit Agreement or for
otherwise ascertaining compliance with this Credit Agreement or any other Loan
Document.
Section 5.7. Observance of Agreements; Audit Rights. Duly observe and
perform all material terms and conditions (except with respect to those terms or
conditions that are disputed in good faith in a manner consistent with prudent
business judgment) of any Material Agreement, and diligently protect and enforce
the rights of the Loan Parties and their Subsidiaries under all such agreements
in a manner consistent with prudent business judgment and subject to the terms
and conditions of such agreements
Section 5.8. Taxes and Charges; Obligations in the Ordinary Course of
Business. (a) Duly pay and discharge, or cause to be paid and discharged, before
the same shall become in arrears (after giving effect to applicable extensions),
all material taxes, assessments, levies and other governmental charges, imposed
upon any Loan Party or its properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials or supplies which if unpaid might by law become a Lien upon any
material property of any Loan Party, and all other material obligations;
provided, however, that any tax, assessment, levy, governmental charge or
material claim for labor, materials or supplies need not be paid if (x) the
validity or amount thereof shall currently be contested in good faith by
appropriate proceedings, (y) such Loan Party shall have set aside on its books
reasonable reserves (the presentation of which is segregated to the extent
required by GAAP) with respect thereto if such reserves are required by GAAP and
(z) the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
(b) Each Loan Party shall also properly file on a timely basis
all material tax returns, reports and statements applicable to them in all
jurisdictions in which they are required to be filed.
Section 5.9. Environmental Laws. (a) Promptly notify the Administrative
Agent upon any Loan Party becoming aware of any violation or potential violation
or non-compliance with, or liability or potential liability under, any
Environmental Laws which, when taken together with all other pending violations
of, or liability under, Environmental Law is reasonably be expected to have a
Material Adverse Effect, and promptly furnish to the Administrative Agent all
notices of any nature which any Loan Party or any Subsidiary of a Loan Party may
receive from any Governmental Authority or other Person with respect to any
violation, or potential violation or non-compliance with, or liability or
potential liability under, any Environmental Laws which, in any case or when
taken together with all such other notices, could reasonably be expected to have
a Material Adverse Effect.
(b) Comply with and use reasonable efforts to ensure
compliance by all tenants and subtenants with all Environmental Laws and
Environmental Permits, and obtain and comply in all respects with and maintain
and use reasonable efforts to ensure that all tenants and subtenants obtain and
comply in all respects with and maintain any and all licenses, approvals,
registrations or permits (including all Environmental Permits) required by
Environmental Laws, except where failure to do so is not reasonably likely to
have a Material Adverse Effect.
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(c) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions required under all
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities, except where failure to
do so would not have a Material Adverse Effect. Any order or directive whose
lawfulness is being contested in good faith by appropriate proceedings shall be
considered a lawful order or directive when such proceedings, including any
judicial review of such proceedings, have been finally concluded by the issuance
of a final non-appealable order; provided, however, that the appropriate Loan
Party shall have set aside on its books reasonable reserves (the presentation of
which is segregated to the extent required by GAAP) with respect thereto.
(d) Indemnify, defend and hold harmless the Administrative
Agent, the other Agents, the Issuing Banks, the Lenders, and the Hedging
Counterparties, and their respective Related Parties and shareholders,
successors and assigns from and against any liability, fine, penalty, loss,
damage, obligation, claim, suit, settlement, action, expense and cost
(including, but not limited to, reasonable attorneys' fees and disbursements
(including cost of in-house counsel), environmental consultant fees and
expenses, investigation expenses, laboratory and litigation costs, all sums paid
in settlement of claims and any fees and expenses incurred in enforcing this
indemnity or collecting any sums permitted hereunder), arising out of or
relating to: (A) the presence, use, generation, disposal, storage, handling,
treatment, processing, transporting or Release of any Hazardous Materials at,
to, on, under, from, or about any Premises; (B) any violation of any
Environmental Law or Environmental Permit by any Loan Party or any Subsidiary of
any Loan Party; (C) the transportation or the arrangement for the
transportation, handling, treatment, or disposal of any Hazardous Materials to
any location other than any Premises by or on behalf of any Loan Party or any
Subsidiary of any Loan Party; (D) any Environmental Claim relating to any
Premises or any activities conducted at any Premises; (E) any costs and expenses
associated with any Premises being an Environmental Clean-Up Site; and (F) any
breach of any environmental representation or covenant in this Credit Agreement
or any other Loan Document (but excluding any such liability, fine, penalty,
loss, damage, suit, settlement, action, expense or cost of an indemnified party
to the extent primarily caused by the gross negligence or willful misconduct of
such indemnified party as determined by a final judgment of a court of competent
jurisdiction). The obligations of the Borrower under this Section 5.9(d) shall
survive the Bank Credit Termination Date, the termination of this Credit
Agreement, the payment of the Obligations and the expiration, termination and/or
cancellation of the Letters of Credit hereunder indefinitely. This Section
5.9(d) supplements and does not modify the terms and provisions of the indemnity
set forth in Section 11.5 hereof.
Section 5.10. Subsidiaries. (a) Promptly (but in any event no later
than ten (10) Business Days after such formation or acquisition) notify the
Administrative Agent if (i) any Subsidiary is hereafter formed or acquired by
any Loan Party or a Subsidiary of a Loan Party or (ii) CGI begins to conduct any
business or operations or owns or holds assets with an aggregate fair market
value in excess of $250,000.
(b) Deliver to the Administrative Agent reasonably promptly
after formation or acquisition of any new Subsidiary or after delivering a
notice pursuant to clause (ii) of Section 5.10(a) above, (i) an Instrument of
Assumption and Joinder executed by such Subsidiary and as applicable, an
Intellectual Property Security Agreement Supplement executed by such
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Subsidiary, (ii) an executed Perfection Certificate with respect to such
Subsidiary, (iii) appropriate Lien searches, (iv) organizational documents, (v)
a written opinion of counsel (which may be provided by in house counsel at
Holdings or the Borrower), (vi) Mortgages as and to the extent required by
Section 5.11 hereof, (vii) such other security documents as may be reasonably
requested by the Administrative Agent or its counsel (all of the foregoing to be
in form and substance reasonably satisfactory to the Administrative Agent and
its counsel), and (viii) if applicable, certificates or other instruments (if
any) representing 100% of the Equity Interests of such Subsidiary together with
an undated stock power (or other appropriate document) executed in blank for
each such certificate or other instrument; provided, however, that with respect
to any Subsidiary of the Borrower that is a Foreign Subsidiary and does not
conduct any operations within the United States, the Borrower may elect (i) to
arrange for the pledge by the applicable Loan Parties of the Equity Interests of
such Subsidiary owned by such Loan Parties; provided that no more than 66% of
the total outstanding Equity Interests of such Subsidiary shall be required to
be pledged by the Loan Parties pursuant to this Section 5.10 and (ii) not to
include such Subsidiary as a Guarantor nor be required to deliver the items set
forth in clauses (i) through (vi). The documents listed in clauses (i), (ii),
(iv), (v) and (viii) above shall be delivered no later than ten (10) Business
Days (or such longer period of time as the Administrative Agent shall agree in
writing) after formation or acquisition of the applicable Subsidiary and in all
events prior to commencement of operations by such Subsidiary. Any document
required to be delivered pursuant to clauses (iii) and (vii) above shall be
delivered no later than fifteen (15) Business Days (or such longer period of
time as the Administrative Agent shall agree in writing) after the request
therefor.
Section 5.11. Real Property Assets. (a) If, after the Amendment No. 9
Closing Date, (i) any Loan Party purchases, leases or otherwise acquires, any
Real Property Asset (other than the OTC Real Property Assets acquired pursuant
to the OTC Documents) with a fair market value, purchase price or annual base
rent payment of $1,000,000 or more (and in the case of a leased Real Property
Asset (other than a ground lease) or Right of Way only, to the extent such Real
Property Asset can be encumbered by a Lien pursuant to the terms of the
applicable lease or instrument pursuant to which such Right of Way was granted
(such leased Real Property Asset being referred to herein as a "Mortgageable
Leased Property/Right of Way")) or (ii) Holdings acquires the Real Property
Asset described in clause (i) of the definition of "Permitted Holdings
Activities" herein, then promptly, but in any event within ten (10) Business
Days (or such longer period of time as the Administrative Agent shall agree in
writing), after such purchase, lease or other acquisition, provide (1) written
notice thereof to the Administrative Agent, setting forth in sufficient detail
for the filing of a mortgage thereon, a description of such Real Property Asset
purchased, leased or otherwise acquired and an appraisal or such Loan Party's
good faith estimate of the current fair market value of such Real Property
Asset; and (2) the applicable Loan Party shall promptly execute and deliver to
the Administrative Agent, a Mortgage with respect to such Real Property Asset.
(b) (i) With respect to any owned Real Property Asset or
Mortgageable Leased Property/Right of Way purchased, leased or otherwise
acquired by a Loan Party after the Amendment No. 9 Closing Date, with a fair
market value, purchase price or annual base rent payment of $2,000,000 or more,
or (ii) with respect to any Real Property Asset described in clause (i) of the
definition of "Permitted Holdings Activities" herein acquired by Holdings after
the Amendment No. 9 Closing Date, promptly execute and deliver to the
Administrative Agent
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such other documents or instruments as the Administrative Agent shall reasonably
request with respect to such Real Property Asset, including, without limitation,
a Phase I environmental report, a Title Policy, a survey and a legal opinion as
to the enforceability of the Mortgage, the Lien created by the Mortgage, any UCC
financing statements filed and the perfection resulting from the filing of such
UCC financing statements.
(c) With respect to any Right of Way purchased, leased or
otherwise acquired after the Amendment No. 9 Closing Date, duly execute an
instrument evidencing the ownership of such Right of Way, and record such
instrument against the property it burdens in the appropriate recording office
to effectuate such Lien.
(d) Notwithstanding the foregoing, within forty-five (45) days
after the end of each calendar quarter, the Borrower shall provide to the
Administrative Agent a list of all Real Property Assets acquired by any Loan
Party during such calendar quarter that are not subject to a Mortgage
(regardless of the fair market value attributed thereto).
(e) In the event that since the Amendment No. 9 Closing Date,
the Loan Parties have acquired interests in owned Real Property Assets or
Mortgageable Leased Property/Right of Way(s) with a fair market value in excess
of $10,000,000 in the aggregate and the Loan Parties have not granted a Lien or
Mortgage on such Real Property Assets in favor of the Administrative Agent (for
the benefit of the Secured Parties), then promptly upon the written request of
the Administrative Agent, the applicable Loan Parties shall promptly execute and
deliver to the Administrative Agent a Mortgage and such other documents or
instruments as the Administrative Agent shall reasonably request with respect to
such Real Property Assets, including, without limitation, the documents listed
at the end of Section 5.11(b) above.
Section 5.12. Further Assurances; Security Interests. (a) Upon the
request of the Administrative Agent, at the cost and expense of the Borrower,
duly execute and deliver, or cause to be duly executed and delivered, such
further agreements, documents, instruments, consents, authorizations or
approvals (in form and substance reasonably satisfactory to the Administrative
Agent), and take or cause to be taken such action, as may be necessary, or
reasonably requested by the Administrative Agent or its counsel, to carry out
the provisions and purposes of this Credit Agreement and the other Loan
Documents including, without limitation, to perfect and/or maintain the Liens of
the Administrative Agent (for the benefit of the Secured Parties).
(b) Upon the request of the Administrative Agent, promptly
execute and deliver or cause to be executed and delivered, at the cost and
expense of the Borrower, such further agreements, documents or instruments as
may be appropriate in the reasonable judgment of the Administrative Agent or its
counsel, to provide the Administrative Agent (for the benefit of the Secured
Parties) a first perfected Lien in the Collateral and in the Real Property
Assets to the extent required by the terms hereof and subject in each case to
Permitted Encumbrances, and any and all documents (including, without
limitation, an amendment or supplement of any financing statement, a
continuation or other statement) for filing under the provisions of the Uniform
Commercial Code and the rules and regulations thereunder, or any other
Applicable Law of the United States or any other jurisdiction which the
Administrative Agent may deem necessary or reasonably advisable, and perform or
cause to be performed such other acts which
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are necessary or reasonably advisable, from time to time, in order to grant,
perfect and maintain in favor of the Administrative Agent (for the benefit of
the Secured Parties) its security interest in the Collateral and its Lien on the
Real Property Assets to the extent required by the terms of any Loan Document,
subject only to Permitted Encumbrances.
(c) In addition to the obligations of the Loan Party pursuant
to Sections 5.12(a) and 5.12(b) above, if, at any time one hundred eighty (180)
days after any Loan Party acquires ownership of either of the Aircraft and such
acquired Aircraft shall not have been refinanced as contemplated by Section
6.1(p) hereof, then such Loan Party will (i) promptly provide written notice
thereof to the Administrative Agent, setting forth in sufficient detail for the
filing of a Lien thereon, a description of such aircraft purchased or otherwise
acquired and (ii) upon the request of the Administrative Agent, at the cost and
expense of the Borrower, promptly execute and deliver such further agreements
and documents (all in form and substance reasonably satisfactory to the
Administrative Agent) and take such action, as may be necessary, or requested by
the Administrative Agent or its counsel, to grant a first priority Lien and
security interest in such Aircraft to the Administrative Agent (for the benefit
of the Secured Parties), subject only to Permitted Encumbrances.
Section 5.13. Liens. Defend the Collateral and the Mortgaged Real
Property Assets against any and all Liens, claims and other impediments
howsoever arising, other than Permitted Encumbrances, and in any event, defend
the same against any attempted foreclosure or other enforcement proceeding.
Section 5.14. Lender Meetings. From time to time as requested by the
Administrative Agent or the Required Lenders, participate in, and cause an
Authorized Officer of the Borrower and/or Holdings to be available for, and to
participate in, a meeting of the Agents and the Lenders to be held, at
reasonable intervals, at locations and at times reasonably requested by the
Administrative Agent (or, if applicable, the Required Lenders).
Section 5.15. Use of Proceeds of Loans. Use the proceeds of Loans for
working capital and other general corporate purposes which are not otherwise
prohibited by the terms of this Credit Agreement or any of the other Loan
Documents.
Section 5.16. Deposit Accounts; Securities Accounts; Other. (a)
Maintain all cash of the Loan Parties in a Controlled Deposit Account or
Controlled Securities Account with one of the Agents, a Lender which is a
commercial bank or an Affiliate of such a Lender, except for the following: (i)
cash deposited in one or more payroll accounts in the ordinary course of
business and consistent with past practices, in an amount necessary to fund
payroll and related payroll taxes which are becoming due within the two (2)
Business Days immediately succeeding such deposit; (ii) cash deposits or pledges
made by the Loan Parties with third parties (other than the Administrative
Agent) in an amount not exceeding $30,000,000 which deposits or pledges
constitute Permitted Encumbrances hereunder; and (iii) other cash balances not
exceeding $1,000,000 in the aggregate; provided, that if any Agent or Lender
with whom a Controlled Deposit Account or Controlled Securities Account is
maintained ceases to be a Lender hereunder, such Loan Party, as applicable,
shall, as soon as practicable, but no later than five (5) days after such Agent
or Lender ceases to be a Lender hereunder (or such longer period of time as the
Administrative Agent shall agree in writing), transfer the funds maintained in
such
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Controlled Deposit Account or Controlled Securities Account from such Controlled
Deposit Account or Controlled Securities Account to a Controlled Deposit Account
or Controlled Securities Account with an entity that meets the requirements set
forth above.
(b) Cause substantially all of its available operating funds
of any Loan Party to be concentrated in a concentration account which shall at
all times be maintained with one of the Agents or a Lender.
ARTICLE 6
NEGATIVE COVENANTS
From the date hereof and for so long as the Revolving Letter of Credit
Commitments shall be in effect, any amount remains outstanding with respect to
any Loan, any Letter of Credit shall remain outstanding, or any Obligation
remains unpaid or unsatisfied, each Loan Party agrees that, unless the Required
Lenders shall otherwise consent in writing, it will not and will not allow any
of its Subsidiaries (other than PowerTel with respect to all the provisions of
this Article 6 and other than any of the Foreign Subsidiaries with respect to
Sections 6.4, 6.6 and 6.13 only) to:
Section 6.1. Limitations on Indebtedness. Incur, create, assume or
permit to exist any Indebtedness, other than:
(a) the Indebtedness and other Obligations under this Credit
Agreement and the other Loan Documents;
(b) Indebtedness refinancing a portion of the Indebtedness
and/or other Obligations under this Credit Agreement, other than the Revolving
Letter of Credit Commitments and Letters of Credit hereunder; provided, that the
terms of any such Indebtedness refinancing only a portion of the Indebtedness
and other Obligations under this Credit Agreement (including without limitation
any security therefor and the Borrower(s) thereunder) shall have been approved
in writing by the Administrative Agent and the Required Lenders;
(c) (i) existing Indebtedness described on Schedule 6.1 hereto
and (ii) any extension, renewal, replacement or refinancing thereof (in whole or
in part) if effected (X) on substantially the same terms or on substantially no
less favorable substantive terms to the applicable Loan Party or Subsidiary
thereof which is the obligor of such Indebtedness or (Y) on terms otherwise
agreed to in writing by the Administrative Agent;
(d) Indebtedness in respect of intercompany advances
constituting Investments permitted under Section 6.4 hereof, including without
limitation, Indebtedness of a Loan Party (other than Holdings and Old WCG) owed
to another Loan Party;
(e) subject to the provisions contained in the last paragraph
of this Section 6.1, Indebtedness incurred by the Borrower or a Subsidiary of
the Borrower in respect of secured purchase money financing (including, without
limitation, Capital Leases) to the extent any Lien granted in respect thereof is
permitted by Section 6.2(e);
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(f) subject to the provisions contained in the last paragraph
of this Section 6.1, Indebtedness of a Person which becomes a Subsidiary of the
Borrower after the Amendment No. 9 Closing Date; provided, that (i) such
Indebtedness existed at the time the Person became a Subsidiary and was not
created in anticipation of the acquisition of such Person and (ii) immediately
after giving effect to the acquisition of such Person by the Borrower or a
Subsidiary Loan Party, no Default or Event of Default shall have occurred and be
continuing;
(g) subject to the provisions contained in the last paragraph
of this Section 6.1, Indebtedness secured by any asset at the time of
acquisition of such asset by the Borrower or a Subsidiary of the Borrower (not
in violation of any of the terms hereof) at any time after the Amendment No. 9
Closing Date; provided, that (i) such Indebtedness existed at the time the asset
was acquired by the Borrower or such Subsidiary and was not created in
anticipation of the acquisition thereof and (ii) such Indebtedness is recourse
only to the specific asset acquired (together with accessions thereto and
proceeds thereof);
(h) Indebtedness incurred by the Borrower or a Subsidiary of
the Borrower in connection with any Interest Rate Protection Agreement;
provided, that such agreement is entered into by the Borrower or the
Subsidiaries of the Borrower for bona fide hedging purposes in the ordinary
course of business and not for speculative purposes and provided, further, that
the Borrower and the Subsidiaries of the Borrower shall not be permitted to
enter into Interest Rate Protection Agreements (and incur Indebtedness in
connection therewith) with respect to notional or similar amounts in excess of
$250,000,000 in the aggregate at any time;
(i) Indebtedness incurred by the Borrower or a Subsidiary of
the Borrower in connection with any Currency Agreement; provided, that such
agreement is entered into by the Borrower or such Subsidiary of the Borrower for
bona fide hedging purposes in the ordinary course of business and not for
speculative purposes; and provided, further, that the Borrower and the
Subsidiaries of the Borrower shall not be permitted to enter into Currency
Agreements (and incur Indebtedness in connection therewith) with respect to
notional or similar amounts in excess of $20,000,000 in the aggregate at any
time;
(j) Indebtedness of the Borrower or Subsidiary of the Borrower
incurred in connection with a Specified Security Hedging Transaction; provided,
that the entering into, or performance under, such Specified Security Hedging
Transaction by the Borrower or Subsidiary of the Borrower does not, on a net
basis, require the payment of any cash or any other consideration whatsoever by
a Loan Party;
(k) payment obligations of the Borrower or a Subsidiary of the
Borrower to the owner or lessor of assets used in a Telecommunications Business
for the use thereof pursuant to a lease, IRU or other similar arrangement with
respect to such assets or a portion thereof entered into in the ordinary course
of business;
(l) Guarantees permitted pursuant to Section 6.3 hereof;
(m) deferred payment obligations resulting from the
adjudication or settlement of any litigation or from an arbitration or mediation
award or settlement, in any case, involving a Loan Party or a Subsidiary of a
Loan Party; provided that (i) the aggregate amount of such
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obligations for all of the Loan Parties and their Subsidiaries shall not exceed
$15,000,000 at any time (excluding (A) any judgment, award or settlement to the
extent covered by insurance and (B) any judgment, award or settlement with
respect to any suit, proceeding, arbitration or mediation commenced against a
Loan Party prior to the Amendment No. 9 Closing Date, but only up to the
aggregate amount of the reserves established by Holdings for contingent
liabilities as set forth in Note 6 to the condensed consolidated financial
statements contained in Holdings' Form 10-Q filed with the Securities and
Exchange Commission for the quarter ended June 30, 2002), and (ii) the
judgment(s), award(s) and/or settlement(s) to which such obligations relate
would not be an Event of Default hereunder;
(n) obligations secured by Liens permitted by Section 6.2(b);
(o) (i) Indebtedness under the Existing Sale Leaseback
Transaction; provided, that if the Escrow Release occurs, then such Indebtedness
shall no longer be permitted under this Credit Agreement; and (ii) if the Escrow
Release occurs, Indebtedness under the OTC Notes (as executed on the Amendment
No. 9 Closing Date and escrowed pursuant to the Escrow Agreement or if
applicable, as each such note has been amended, restated, renewed, replaced,
restructured, supplemented or otherwise modified in accordance with the terms of
this Credit Agreement);
(p) obligations under one or more Capital Leases entered into
by the Borrower or a Subsidiary of the Borrower, with respect to one or more
Sale Leaseback Transactions for the Aircraft; provided, that on any date, the
aggregate capitalized amount of all such Capital Leases (determined in
accordance with GAAP and as would appear on the consolidated balance sheet of
Holdings and its Consolidated Subsidiaries if prepared on such date) shall not
exceed $30,000,000 at any time;
(q) on or after September 7, 2005 and provided no Default or
Event of Default has occurred and is then continuing, Indebtedness with respect
to a letter of credit facility in an aggregate amount not to exceed $45,000,000
and having such terms and provisions as are reasonably acceptable to the
Administrative Agent;
(r) Indebtedness of Holdings owed to a Permitted Investor;
provided, that (i) such Indebtedness is unsecured and is subordinated to the
Obligations on terms reasonably satisfactory to the Administrative Agent, (ii)
such Indebtedness does not require the payment of any scheduled amortization,
sinking fund requirement or other principal payment prior to the date which is
six (6) months after the Maturity Date, (iii) such Indebtedness does not require
the payment of any cash interest prior to the date which is six (6) months after
the Maturity Date, (iv) the maturity date of such Indebtedness is not earlier
than the date which is six (6) months after the Maturity Date, (v) the
incurrence of such Indebtedness does not require the payment of any fee to the
Permitted Investor prior to the date which is six (6) months after the Maturity
Date and (vi) such Indebtedness is issued pursuant to written agreements
containing covenants, defaults and other terms and provisions which are
reasonably acceptable to the Administrative Agent;
(s) in addition to the Indebtedness permitted by other
paragraphs of this Section 6.1, Indebtedness in an aggregate outstanding
principal amount, not in excess of
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$5,000,000 at any time; provided, that any Indebtedness incurred in connection
with any Hedging Agreement or Specified Security Hedging Transaction shall not
be permitted pursuant to this Section 6.1(s), but shall only be permitted
pursuant to, and as provided in Sections 6.1(h), 6.1(i) or 6.1(j) above (as
applicable).
The aggregate outstanding principal amount of Indebtedness permitted by
Sections 6.1(e), 6.1(f) and 6.1(g) may not exceed $35,000,000 at any time.
Neither the accrual of interest, nor any accretion of accreted value shall be
deemed to be an incurrence of Indebtedness for purposes of this Section 6.1.
Notwithstanding anything in this Credit Agreement to the contrary, neither the
Borrower nor any of the Subsidiary Loan Parties shall Guaranty any Indebtedness
or other obligation of Holdings or Old WCG.
Section 6.2. Limitations on Liens. Incur, create, assume or permit to
exist any Lien on any of its revenue stream, property or assets (including,
without limitation, any Proprietary Rights), whether now owned or hereafter
acquired, or assign or sell any income or revenues or rights in respect of any
thereof, except:
(a) pledges and deposits under worker's compensation,
unemployment insurance and social security and similar laws, or to secure
statutory obligations or surety, appeal, performance, completion or other
similar bonds or obligations of a like nature, to secure performance as lessee
under a lease of real or personal property (to the extent such lease is not
prohibited hereunder), or to secure performance of tenders, bids, contracts
(other than for the repayment of Indebtedness) and other obligations of a like
nature, in each case incurred in the ordinary course of business;
(b) Liens customarily granted or incurred in the ordinary
course of business with regard to services rendered by carriers, warehousemen,
suppliers of materials and equipment, mechanics and repairmen and other Liens
imposed by Applicable Law, in each case, not securing obligations which are more
than forty-five (45) days past due (unless such obligations are being contested
in good faith and with respect to which appropriate reserves have been
established in accordance with GAAP and the applicable Loan Party or Subsidiary
is in compliance with Section 5.8 hereof);
(c) the Liens of the Administrative Agent (for the benefit of
the Secured Parties) under this Credit Agreement, the other Loan Documents and
any other document contemplated hereby or thereby (including, without
limitation, the Second Mortgage);
(d) existing Liens listed on Schedule 6.2 hereto;
(e) subject to clause (Z) of the proviso at the end of this
Section 6.2, Liens granted to a Person financing the acquisition or capital
lease of property, plant or equipment if (i) the Lien is limited to the
particular asset(s) acquired (and proceeds thereof); (ii) the Indebtedness
secured by the Lien does not exceed the acquisition cost of the particular
asset(s) for which such Lien is granted; and (iii) such transaction does not
otherwise violate this Credit Agreement or any other Loan Document;
(f) Liens arising out of judgments, awards or settlements that
would not constitute an Event of Default under Section 7(i) hereof;
85
(g) Liens for taxes, assessments or other governmental charges
or levies (i) that are not yet due and payable or (ii) that are due and payable
but are currently being contested in good faith and are not required to be paid
pursuant to the proviso set forth in Section 5.8 hereof;
(h) Liens arising from Uniform Commercial Code financing
statements filed in connection with an operating lease, in each case not
prohibited hereunder; provided that no such financing statement covers any
property or assets of a Loan Party or a Subsidiary thereof, other than the
property or assets which are subject to such operating lease;
(i) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, Requirements,
restrictions (including, without limitation, zoning restrictions), minor title
defects, covenants, consents, reservations, encroachments, variations and other
similar restrictions, charges, and other encumbrances (whether or not recorded)
(but specifically excluding rights of first refusal, options and other
contractual rights to sell, assign or otherwise dispose of any Real Property
Asset or any interest therein) on any Real Property Asset which arise in the
ordinary course of business, that do not secure any monetary obligations and
which, in the aggregate, (i) do not materially interfere with the ordinary
conduct of the business of the Loan Parties or any lessee under a lease, and
(ii) do not materially impair the use of, or access from and to, any material
Real Property Asset by any Loan Party or any lessee under a lease;
(j) Liens arising by virtue of any statutory or common law
provision relating to banker's liens, rights of set off or similar rights with
respect to deposit accounts and/or securities accounts; and Liens with respect
to a deposit account or securities account in favor of the bank or the
securities intermediary (as applicable) where such account is maintained and
incurred in connection with the maintenance of such deposit account or
securities account in the ordinary course of business;
(k) Liens to secure Indebtedness permitted by Section 6.1(b)
or a Guaranty permitted by Section 6.3(c) to the extent such Indebtedness or
Guaranty (as applicable) is permitted to be secured pursuant to the terms of
such Section 6.1(b) or such Section 6.3(c) (as applicable);
(l) Liens in favor of the Borrower or any other Loan Party
(other than Holdings or Old WCG);
(m) any interest or title of a licensee or licensor under any
license agreement entered into by the Borrower or any Subsidiary of the Borrower
in the ordinary course of its business and covering only the assets so licensed
provided, that any such interest or title permitted by this Section 6.2(m),
could not reasonably be expected to be a Material Adverse Effect;
(n) any interest of a lessee or lessor under any lease entered
into by the Borrower or any Subsidiary of the Borrower in the ordinary course of
its business and relating solely to the assets subject to such lease, provided,
that any such interest permitted by this Section 6.2(n) could not reasonably be
expected to be a Material Adverse Effect;
86
(o) Liens on a Specified Security securing obligations under a
Specified Security Hedging Transaction with respect to such Specified Security,
to the extent such Specified Security Hedging Transaction is permitted pursuant
to Section 6.1(j) hereof;
(p) subject to the provisions of the last paragraph of this
Section 6.2, cash deposits and pledges made by the Loan Parties to third parties
(other than the Administrative Agent);
(q) rights of first refusal, options or other contractual
rights to sell, assign or otherwise dispose of any Real Property Asset or
interest therein which right of first refusal, option or contractual right (i)
is described on Schedule 6.2 hereto, or (ii) is in connection with an asset sale
permitted by Section 6.6 hereof;
(r) (i) the existing Liens in connection with the Existing
Sale Leaseback Transaction; (ii) the Lien created pursuant to, and evidenced by,
the OTC Mortgage as executed on the Amendment No. 9 Closing Date and escrowed
pursuant to the Escrow Agreement or if applicable, as such document has been
amended, restated, renewed, replaced, restructured, supplemented or otherwise
modified in accordance with the terms of this Credit Agreement; and (iii) the
Liens created pursuant to the OTC Pledge Agreements (as executed on the
Amendment No. 9 Closing Date and escrowed pursuant to the Escrow Agreement or if
applicable, as such agreements have been amended, restated, renewed, replaced,
restructured, supplemented or otherwise modified in accordance with the terms of
this Credit Agreement); provided, that in the case of (ii) and (iii) above, the
Escrow Release has occurred; and provided, further, that such Liens pursuant to
the OTC Pledge Agreements are subordinate to the Liens granted under the Loan
Documents in accordance with the terms and provisions of the Intercreditor
Agreement (PowerTel Collateral), and are otherwise subject to the terms and
provisions of the Intercreditor Agreement (PowerTel Collateral);
(s) Liens securing Indebtedness permitted by clause (ii) in
Section 6.1(c), provided, that such Liens shall by their terms cover only such
property or assets as is covered by the Liens securing the Indebtedness being
extended, renewed, replaced or refinanced and no new or additional property or
assets;
(t) Liens on the property or assets of a Person which becomes
a Subsidiary of the Borrower after the Amendment No. 9 Closing Date securing
Indebtedness permitted under Section 6.1(f) hereof; provided, that (i) such
Liens existed at the time such Person became a Subsidiary of the Borrower and
were not created in anticipation or contemplation of the acquisition of such
Person, (ii) any such Lien does not by its terms cover any property or assets
after the time such Person becomes a Subsidiary of the Borrower which were not
covered immediately prior thereto, and (iii) any such Lien does not by its terms
secure any Indebtedness other than Indebtedness existing immediately prior to
the time such Person becomes a Subsidiary of the Borrower;
(u) Liens on an asset at the time of acquisition of such asset
by the Borrower or a Subsidiary of the Borrower; provided, that (i) such Liens
existed at the time of such acquisition and were not created in anticipation or
contemplation of the acquisition of such asset, (ii) any such Lien does not by
its terms cover any property or assets other than the asset acquired
87
(together with accessions thereto and proceeds thereof), and (iii) any such Lien
does not by its terms secure any Indebtedness other than Indebtedness permitted
pursuant to Section 6.1(g);
(v) Liens on either of the Aircraft, the engines attached to
the Aircraft, and such other related assets as agreed to by the Administrative
Agent to secure Indebtedness permitted by Section 6.1(p) hereof, provided, that
the Escrow Release has occurred;
(w) Liens to secure Indebtedness permitted by Section 6.1(q);
provided, that the assets subject to such Lien shall have been approved by the
Administrative Agent in the exercise of its reasonable discretion; and
(x) Liens not otherwise permitted by other paragraphs of this
Section 6.2; provided that the aggregate amount of Indebtedness or other
obligations secured by Liens permitted by this Section 6.2(x) shall not exceed
$2,000,000 at any time;
provided, that (X) the Liens described in paragraphs (a), (b), (g), (h), (i),
(m), (n), (p) and (q) above shall not include any Lien securing Indebtedness;
(Y) notwithstanding the foregoing and anything to the contrary contained herein
or in any other Loan Document, the Loan Parties will not permit the aggregate
amount of cash deposits or pledges made by the Loan Parties to third parties
(other than the Administrative Agent) to exceed $30,000,000 in the aggregate at
any time whether made pursuant to paragraph (p) or any other paragraph of this
Section 6.2; and (Z) the aggregate amount of all Indebtedness secured by Liens
permitted by Sections 6.2(e), 6.2(t) and 6.2(u) above may not exceed $35,000,000
at any one time outstanding for all of the Loan Parties and their Subsidiaries.
Section 6.3. Limitation on Guaranties. Incur, create, assume or suffer
to exist any Guaranty, either directly or indirectly, except:
(a) the endorsement of negotiable instruments for deposit or
collection in the ordinary course of business;
(b) the Guaranties made by the Guarantors pursuant to Article
8 hereof;
(c) a Guaranty by a Loan Party of Indebtedness permitted to be
incurred pursuant to Section 6.1(b) hereof; provided, that the terms of any such
Guaranty and the Loan parties providing such Guaranty shall have been approved
in writing by the Administrative Agent and the Required Lenders;
(d) Guaranties of obligations of a Loan Party (other than
Holdings and Old WCG) which obligations are not prohibited hereunder;
(e) Guaranties set forth on Schedule 6.1 hereto; and
(f) Guaranties constituting Investments that are not
prohibited by Section 6.4 hereof.
88
Notwithstanding anything in this Credit Agreement to the contrary, neither the
Borrower nor any of the Subsidiary Loan Parties shall Guaranty any Indebtedness
or other obligation of Holdings or Old WCG.
Section 6.4. Limitations on Investments. Create, make, incur, purchase,
acquire or hold (including, without limitation, pursuant to any merger with any
Person) any Investment, except:
(a) cash and Cash Equivalents; provided, that Investments
permitted by this Section 6.4(a), shall be held in accordance with Section 5.16
hereof and as required by the Security Agreement;
(b) in addition to any loans or advances outstanding on or
prior to the Amendment No. 9 Closing Date and listed on Schedule 6.4 hereto, (i)
loans and advances made after the Amendment No. 9 Closing Date, to officers and
employees of Holdings, the Borrower or any Subsidiary Loan Party, all of the
proceeds of which are used to pay relocation expenses of any such officer or
employee and (ii) cash advances made after the Amendment No. 9 Closing Date, to
officers and employees of Holdings, the Borrower and/or any Subsidiary Loan
Party made in the ordinary course of business; provided that the aggregate
outstanding principal amount of loans and advances permitted by this Section
6.4(b), (whether made pursuant to clause (i) or clause (ii)) shall not exceed
$3,000,000 at any time; and provided, further, that the $3,000,000 amount set
forth above in the immediately preceding proviso, shall be reduced, Dollar for
Dollar, by the aggregate amount of any loans and advances which have been
forgiven by a Loan Party or Subsidiary thereof or the amount of any loss on the
sale or other disposition of any such loans or advances (as permitted by Section
6.6(i) hereof);
(c) Investments (whether as equity, loans, Guaranties
permitted hereunder or other Investments) by a Subsidiary of the Borrower in the
Borrower; provided, that any such Investment is subordinated to the extent
required by Section 11.16 hereof;
(d) Investments (whether as equity, loans, Guaranties
permitted hereunder or other Investments) by the Borrower or a Loan Party in
another Loan Party (other than Holdings or Old WCG);
(e) Investments (whether as equity, loans, Guaranties
permitted hereunder or other Investments) by the Borrower or a Subsidiary Loan
Party in any Foreign Subsidiary or Existing International Joint Venture;
provided, that the amount of all Investments made by the Loan Parties at any
time on or after October 19, 2001 in Foreign Subsidiaries or Existing
International Joint Ventures pursuant to this Section 6.4(e) or any other
paragraph of this Section 6.4 shall not exceed $30,000,000 in the aggregate at
any time;
(f) Investments by the Borrower in Holdings to the extent
constituting a Restricted Payment permitted under Section 6.5(a)(v) hereof;
(g) (i) Investments consisting of delinquent accounts
receivable arising in the ordinary course of business, and (ii) Investments
received in connection with the bankruptcy or reorganization of, or in
settlement of delinquent accounts or disputes with, customers and
89
suppliers, created in the ordinary course of business and owing to any Loan
Party or a Subsidiary of a Loan Party;
(h) (i) existing Investments described on Schedule 6.4 hereto
and any extension or renewal of any such Investment, but not any increase in the
amount thereof and (ii) existing Investments described on Schedule 6.4A hereto;
provided that such Investments described on Schedule 6.4A shall not be permitted
under this Section 6.4(h) after November 1, 2002;
(i) Investments made as a result of the receipt of non-cash
consideration from an asset sale made in compliance with Section 6.6 hereof;
(j) Guaranties permitted by Section 6.3;
(k) Hedging Agreements permitted under Sections 6.1(h) and
6.1(i) hereof;
(l) Specified Security Hedging Transactions permitted under
Section 6.1(j) hereof;
(m) Capital Expenditures made in accordance with Section 6.8
hereof;
(n) Investments in a Person engaged in the Telecommunications
Business; provided, that the amount of all Investments made on or after the
Amendment No. 9 Closing Date pursuant to this Section 6.4(n) shall not exceed
$10,000,000 in the aggregate in any calendar year, and shall not exceed
$30,000,000 (as adjusted below, the "Threshold Amount") in the aggregate at any
time outstanding; provided, that any loss on the sale or other disposition of
any such Investment (as permitted by Section 6.6(i) hereof) shall reduce Dollar
for Dollar such Threshold Amount; and any cash gain on any sale or disposition
shall increase Dollar for Dollar such Threshold Amount, but in no event shall
the aggregate amount of Investments made pursuant to this Section 6.4(n) and
outstanding at any time ever exceed $30,000,000; and
(o) (i) the purchase or other acquisition of either of the
Aircraft or all of the outstanding Equity Interests of the Aircraft Lessor in
accordance with the OTC Documents (as such documents are escrowed pursuant to
the Escrow Agreement or if applicable, as amended, restated, renewed, replaced,
restructured, supplemented or otherwise modified in accordance with the terms of
this Credit Agreement) and (ii) the purchase of the assets (other than the
Aircraft) described in and pursuant to the OTC Purchase and Sale Agreement (as
amended, restated, renewed, replaced, restructured, supplemented or otherwise
modified in accordance with the terms of this Credit Agreement), provided, in
the case of this clause (ii), that the Escrow Release has occurred.
In determining the aggregate amount of Investments made pursuant to any
subsection of this Section 6.4, any such Investment shall be valued at the cost
of acquisition thereof net, in case of each such Investment (but not below
zero), of any cash distributions or cash proceeds received (whether upon the
disposition thereof or otherwise) by the applicable Loan Party in respect of
such Investment made by it (other than a disposition to another Loan Party of
such Investment). In addition, notwithstanding anything in this Credit Agreement
to the contrary, neither the Borrower nor any Subsidiary Loan Party shall make
any Investment in Old WCG.
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Section 6.5. Restricted Payments; Certain Payments of Indebtedness;
Disqualified Stock. (a) Pay, declare, make, or become obligated to make, any
Restricted Payment, except:
(i) the declaration and payment of dividends and/or
distributions by any direct or indirect wholly-owned Subsidiary of a Loan Party
to a Loan Party (other than to Holdings or Old WCG);
(ii) the declaration and payment of dividends and/or
distributions by any wholly-owned Foreign Subsidiary of a Loan Party to another
Foreign Subsidiary of a Loan Party which is its direct parent;
(iii) the declaration and payment of dividends and/or
distributions by Holdings payable solely in additional shares of its ordinary
common stock;
(iv) the declaration and payment of any dividend or
distribution by a Subsidiary of the Borrower which is not a wholly-owned
Subsidiary to the holders of its Equity Interests described in clause (i) of
such definition, on a pro rata basis; provided, that such declaration and
payment have been consented to in writing by the Administrative Agent;
(v) to the extent permitted under Section 11.16
hereof, payments with respect to intercompany Indebtedness, intercompany
receivables or intercompany advances constituting Investments permitted under
Section 6.4(c) or 6.4(d) hereof;
(vi) the issuance of shares of any class of Holdings'
stock in connection with the exercise of a stock option or similar right
(however designated) issued pursuant to an employee benefit plan or program not
prohibited hereunder; and
(vii) distributions, loans or advances to Holdings by
the Borrower in an amount sufficient to enable it to pay its income and other
taxes, and reasonable, out of pocket operating and administrative expenses,
including without limitation, directors' fees and expenses, legal and audit
expenses, SEC compliance expenses and corporate franchise and other taxes, and
for no other purposes.
(b) Make, directly or indirectly, any prepayment or other
voluntary payment or distribution (whether in cash, securities or other
property) in respect of Indebtedness under any of the OTC Documents, the
Existing Sale Leaseback Transaction (except in connection with the transactions
effected pursuant to the OTC Documents), or any Indebtedness incurred pursuant
to Section 6.1(b) or 6.1(f) hereof (collectively, "Specified Indebtedness") or
any prepayment or other voluntary payment or other distribution (whether in
cash, securities or other property), including, without limitation, any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Specified Indebtedness (or enter
into any transaction the economic effect of which is substantially similar to
any of the foregoing), except, the Borrower and/or any of its Subsidiaries shall
be permitted (i) to make payments of regularly scheduled principal and interest
as and when due in respect of any Specified Indebtedness; (ii) to prepay the
Indebtedness under any of the OTC Documents with the proceeds of the disposition
or refinancing of either of the Aircraft as required by the terms and provisions
of the OTC Documents as in effect on the Amendment No. 9 Closing Date or if
applicable, as such documents have been amended, restated, renewed, replaced,
91
restructured, supplemented or otherwise modified in accordance with the terms of
this Credit Agreement; and (iii) to make prepayments or other voluntary payments
or distributions (whether in cash, securities or other property) in respect of
Indebtedness incurred pursuant to Section 6.1(f) hereof up to an aggregate
principal amount of $10,000,000 over the term of this Credit Agreement, and
provided that at the time of any such prepayment, voluntary payment or
distribution, no Event of Default shall have occurred and then be continuing.
(c) (i) Directly or indirectly redeem, purchase or otherwise
acquire any notes or other indebtedness issued by Holdings, Old WCG, the
Borrower or any of their Subsidiaries or Affiliates, or
(ii) Except as expressly permitted by Section
6.5(a)(i) hereof, directly or indirectly pay any cash dividends in respect of,
or redeem, purchase or otherwise acquire, any Equity Interests of Holdings, Old
WCG, the Borrower or any of their Subsidiaries or Affiliates, or
(iii) Accept as payment on any account receivable or
other obligation, any notes, indebtedness or Equity Interest issued by Holdings,
Old WCG, the Borrower or any of their Subsidiaries or Affiliates;
provided, however, that with respect to this Section 6.5(c), the Borrower may
enter into transactions with a Subsidiary Loan Party or a Foreign Subsidiary, a
Subsidiary Loan Party may enter into transactions with another Subsidiary Loan
Party or a Foreign Subsidiary, and a Foreign Subsidiary may enter into
transactions with another Foreign Subsidiary in each case in accordance with
past practices and, provided that such transactions are expressly permitted by
Sections 6.1, 6.4 and the other provisions hereof.
(d) Issue, or become obligated to issue, any Disqualified
Stock.
Section 6.6. Merger, Sale of Assets, Purchases, etc. Whether in one
transaction or a series of transactions, wind up, liquidate or dissolve its
affairs, or enter into any transaction of merger or consolidation, or sell,
transfer, lease or otherwise dispose of any of its property or assets
(including, without limitation any capital stock of any Subsidiary) or in the
case of any Loan Party (other than Holdings) or any Subsidiary of a Loan Party,
issue additional Equity Interests, or agree to do or suffer any of the
foregoing, except for:
(a) the merger by any Guarantor (other than Holdings) or
solvent Subsidiary into the Borrower or another Guarantor (other than Holdings
or Old WCG) if after such merger, no Default or Event of Default exists;
(b) (i) the transfer by any Guarantor (other than Holdings) or
solvent Subsidiary of all of its assets to the Borrower or another Guarantor
(other than Holdings or Old WCG) and the subsequent dissolution of such
Guarantor or solvent Subsidiary if after such transactions, no Default or Event
of Default exists; (ii) the transfer of assets from the Borrower to Holdings so
long as the acquisition of any such assets by Holdings constitutes a Permitted
Holdings Activity; and (iii) the transfer of assets from a Loan Party or a
Subsidiary thereof to a Loan Party (other than Holdings or Old WCG);
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(c) the liquidation of Old WCG in accordance with the terms
and provisions of the Declaration of Trust, provided that the proceeds thereof
are applied to repay outstanding Obligations in accordance with the Declaration
of Trust;
(d) (i) the issuance to the Borrower or any other Subsidiary
Loan Party of Equity Interests in any Subsidiary Loan Party other than the
Borrower; and (ii) the issuance to Holdings by the Borrower of Equity Interests
in the Borrower; provided, that in the case of clause (i) or clause (ii),
simultaneously with the issuance of any such additional Equity Interests, the
applicable Loan Party receiving such Equity Interests shall pledge or otherwise
▇▇▇▇▇ ▇ ▇▇▇▇ in such Equity Interests to the Administrative Agent (for the
benefit of the Secured Parties) in accordance with the terms of the Security
Agreement;
(e) sales, transfers, leases or other dispositions of fiber
optic cable capacity (not involving the transfer of ownership of the applicable
fiber optic cable), sales of investment units in undersea cable consortia,
inventory, used and/or surplus assets, and Cash Equivalents, in each case in the
ordinary course of business;
(f) Permitted Telecommunications Asset Dispositions;
(g) the transfer of assets to a Joint Venture, partnership or
other Person to the extent permitted by Section 6.4(e) and Section 6.16 hereof;
(h) (i) the sale or other disposition of either of the
Aircraft; or (ii) the sale of any property in connection with a Sale Leaseback
Transaction permitted pursuant to Section 6.7 hereof;
(i) sales, transfers and dispositions of Non-Core Assets, any
Investment held by a Loan Party and permitted under any of Sections 6.4(b),
6.4(g), 6.4(i) or 6.4(n) hereof, or any existing Investment listed in Schedule
6.4 hereto; provided that (A) the consideration received for each such asset
sold or disposed of (or the asset(s) being received in exchange therefor, only
in the case of any disposition of warehouse equipment pursuant to an exchange
transaction) shall not be less than the fair value of such asset at the time of
sale or disposition thereof (and, if the consideration received therefor is
equal to or greater than $10,000,000 in a single transaction or a series of
related transactions, then the fair value of such asset shall be determined in
good faith and approved by the Board of Directors of Holdings); (B) prior to, or
concurrently with, each such sale or disposition for which the consideration
received (or the asset(s) being received in exchange therefor only in the case
of any disposition of warehouse equipment pursuant to an exchange transaction)
is equal to or greater than $10,000,000, the Borrower shall deliver to the
Administrative Agent a certificate of an Authorized Officer of the Borrower
setting forth the fair value at the time of sale or disposition of the asset
being sold or disposed of as determined by the Board of Directors of Holdings,
together with the material reviewed by the Board of Directors of Holdings in
connection with making such determination; (C) not less than 80% of the
consideration received for any asset sold or disposed of pursuant to this
Section 6.6(i) shall be payable in cash on the date of such sale or disposition;
provided, however, that warehouse equipment, may be exchanged by the Borrower or
a Subsidiary Loan Party for one or more asset(s) of equal value to be used in
the regular course of its business; (D) the non-cash portion of the
consideration received, if any, shall be evidenced by one or more promissory
notes
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maturing no later than three (3) years after the date of such sale or
disposition (which notes shall be pledged to the Administrative Agent (for the
benefit of the Secured Parties)); (E) if such sale or disposition is to an
Affiliate, it shall be made in compliance with Section 6.12 hereof and (F) the
Net Cash Proceeds received (if any) shall be deposited in a Deposit Account that
is with a Lender and that is subject to a Lien in favor of the Administrative
Agent. The applicable Loan Party shall deliver to the Administrative Agent and
FTI, no less than five (5) Business Days prior to the date of any expected sale
or other disposition permitted under this Section 6.6(i) in which the
consideration to be received is equal to or greater than $10,000,000, written
notice of the identity of the purchaser or transferee, the expected date of the
closing of such sale or other disposition, the expected date of receipt by the
applicable Loan Party of the Net Cash Proceeds with respect thereto (or the
asset(s) being received, if applicable), the principal terms of the sale or
disposition and such other information as any of the Administrative Agent or FTI
may reasonably request (which notice shall also contain a statement that the
consideration (or the fair value of the asset(s) being received, if applicable)
is greater than or equal to the fair value of the asset being sold or disposed
of);
(j) the Permitted Strategic Disposition; provided, that (A)
the consideration received for the assets sold or disposed of shall not be less
than the fair value of such assets at the time, as determined in good faith and
approved by the Board of Directors of Holdings; (B) prior to, or concurrently
with, such sale or disposition, the Borrower shall deliver to the Administrative
Agent, a certificate of an Authorized Officer of the Borrower setting forth the
fair value at the time of sale or disposition of the assets being sold or
disposed of as determined by the Board of Directors of Holdings, together with
the material reviewed by the Board of Directors of Holdings in connection with
making such determination; (C) the consideration received for such asset sold or
disposed of pursuant to this Section 6.6(j) shall be cash and shall be payable
on the date of such sale or disposition; (D) if such sale or disposition is to
an Affiliate, it shall be made in compliance with Section 6.12 hereof and (E)
the Net Cash Proceeds received shall be applied to repay the Loans if required
pursuant to Section 2.9(d) hereof. The applicable Loan Party shall deliver to
the Administrative Agent and FTI, no less than ten (10) Business Days prior to
the date of any expected sale or other disposition permitted under this Section
6.6(j), written notice of the identity of the purchaser or transferee, the
expected date of the closing of such sale or other disposition, the expected
date of receipt by the applicable Loan Party of the Net Cash Proceeds with
respect thereto, the principal terms of the sale or disposition and such other
information as any of the Administrative Agent or FTI may reasonably request
(which notice shall also contain a statement that the consideration is greater
than, or equal to, the fair value of the assets being sold or disposed of);
(k) subject to the terms and provisions of this Credit
Agreement and the other Loan Documents, the use of cash;
(l) the granting of Permitted Encumbrances;
(m) the sale, transfer and/or disposition of any asset to the
extent that such sale, transfer and/or disposition constitutes an Investment
permitted by Section 6.4 or a Restricted Payment permitted by Section 6.5(a)
hereof; and
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(n) in addition to the transactions permitted by the other
paragraphs of this Section 6.6, the sale, transfer and/or disposition over the
term of this Credit Agreement, of assets having an aggregate fair market value
not in excess of $5,000,000.
Section 6.7. Sale Leaseback Transactions. Enter into any Sale Leaseback
Transaction other than (a) one or more Sale Leaseback Transactions with respect
to the Aircraft, provided, that (i) any lease entered into in connection with
any such transaction shall be a Capital Lease, and (ii) the incurrence of
Indebtedness in connection with all such transactions under this clause (a)
shall be permitted pursuant to Section 6.1(p) hereof; (b) one or more Sale
Leaseback Transactions that have been consented to in writing by the
Administrative Agent, provided, that (1) the NPV Amount of all leases entered
into with respect to all Sale Leaseback Transactions permitted pursuant to this
clause (b) shall not exceed $25,000,000 at any time, and (2) the Net Cash
Proceeds received by a Loan Party from any such Sale Leaseback Transaction
permitted pursuant to this clause (b) shall be applied to prepay the Loans to
the extent required by the provisions of Section 2.9(e) hereof; and (c) the
Existing Sale Leaseback Transaction.
Section 6.8. Limitation on Capital Expenditures. (a) Make or incur any
obligation to make Consolidated Capital Expenditures (including obligations
under Capital Leases) in an aggregate amount during each period set forth below
(as measured on the last day of each such period), in excess of the amount for
such period indicated below:
PERIOD AMOUNT
------ ------
From January 1, 2002
through and including December 31, 2002 $166,600,000
From April 1, 2002
through and including March 31, 2003 $162,100,000
From July 1, 2002
through and including June 30, 2003 $178,300,000
From October 1, 2002
through and including September 30, 2003 $174,800,000
From January 1, 2003
through and including December 31, 2003 $195,300,000
From April 1, 2003
through and including March 31, 2004 $200,700,000
From July 1, 2003
through and including June 30, 2004 $206,000,000
From October 1, 2003
through and including September 30, 2004 $211,400,000
From January 1, 2004
through and including December 31, 2004 $216,700,000
From April 1, 2004
through and including March 31, 2005 $225,700,000
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From July 1, 2004
through and including June 30, 2005 $234,700,000
From October 1, 2004
through and including September 31, 2005 $243,700,000
From January 1, 2005
through and including December 31, 2005 $252,700,000
From April 1, 2005
through and including March 31, 2006 $253,200,000
From July 1, 2005
through and including June 30, 2006 $253,800,000
(b) To the extent the amount of Consolidated Capital
Expenditures permitted by Section 6.8(a) above for any fiscal year (pursuant to
the chart set forth in such Section 6.8(a), and without regard to any carryover
amount pursuant to this Section 6.8(b)) is in excess of the actual amount of
Consolidated Capital Expenditures made or incurred in such fiscal year (all as
determined on December 31st of such fiscal year), then the Borrower may make
Consolidated Capital Expenditures in the immediately succeeding fiscal year only
(in addition to those otherwise permitted under Section 6.8(a)) in an amount up
to, but not exceeding 50% of such excess amount. Each certificate delivered
pursuant to Section 5.1(d) hereof shall indicate the amount of Consolidated
Capital Expenditures made pursuant to Section 6.8(a) and the amount made
pursuant to Section 6.8(b) hereof.
Section 6.9. Minimum Consolidated EBITDA. Permit Consolidated EBITDA
for each period set forth below (as measured on the last day of such period), to
be less than the amount set forth below opposite such period:
PERIOD AMOUNT
------ ------
From October 1, 2002
through and including March 31, 2003 $ (65,000,000)
From January 1, 2003
through and including June 30, 2003 $ (50,000,000)
From January 1, 2003
through and including September 30, 2003 $ (45,000,000)
From January 1, 2003
through and including December 31, 2003 $ (40,000,000)
From April 1, 2003
through and including March 31, 2004 $ (35,000,000)
From July 1, 2003
through and including June 30, 2004 $ (30,000,000)
From October 1, 2003
through and including September 30, 2004 $ (25,000,000)
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From January 1, 2004
through and including December 31, 2004 $ (20,000,000)
From April 1, 2004
through and including March 31, 2005 $ (15,000,000)
From July 1, 2004
through and including June 30, 2005 $ (5,000,000)
From October 1, 2004
through and including September 30, 2005 $ 10,000,000
From January 1, 2005
through and including December 31, 2005 $ 30,000,000
From April 1, 2005
through and including March 31, 2006 $ 80,000,000
From July 1, 2005
through and including June 30, 2006 $ 150,000,000
Section 6.10. Minimum Gross Margin from the Voice Business. Permit the
Voice Gross Margin (determined on a Trailing Four Quarters basis, as of the last
day of each fiscal quarter of Holdings), to be less than $80,000,000 for any
such Trailing Four Quarters.
Section 6.11. Fixed Charge Coverage Ratio. Permit the ratio, determined
on a Trailing Four Quarters basis, as of the last day of each fiscal quarter of
Holdings ending on or after March 31, 2006, of (i) Consolidated EBITDA for such
period, plus without any duplication of amounts included in the calculation of
Consolidated EBITDA, the aggregate amount of Net Cash Proceeds from asset sales
actually received by the Loan Parties during such period, minus the aggregate
amount actually paid in cash by the Loan Parties during such period on account
of Consolidated Capital Expenditures, to (ii) the sum of (x) all scheduled
principal payments of Indebtedness made by the Loan Parties in cash (including,
without limitation, all payments with respect to the principal component of
Capital Lease obligations) in each case during such period, (y) Consolidated
Interest Expense paid in cash during such period and (z) income taxes paid in
cash by the Loan Parties during such period, to be less than 1.10 to 1.00.
Section 6.12. Transactions with Affiliates. Enter into any transaction
with, or make any payment to, any of its Affiliates that is less favorable to a
Loan Party than would have been the case if such transaction had been effected
on an arm's-length basis with a Person other than an Affiliate except for (a)
transactions required to be effected pursuant to, and on the terms provided for
in, existing agreements as in effect on the Amendment No. 9 Closing Date and
listed on Schedule 6.12 hereto, (b) Restricted Payments permitted pursuant to
Section 6.5 and/or Investments permitted pursuant to Section 6.4 hereof, (c) the
Borrower may enter into transactions with Subsidiary Loan Parties (and not
involving Holdings, Old WCG or any other Affiliate), and (d) Subsidiary Loan
Parties may enter into transactions with other Subsidiary Loan Parties (and not
involving Holdings, Old WCG or any other Affiliate).
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Section 6.13. Restrictive Agreements. Directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of any Loan
Party or any Subsidiary of a Loan Party to create, incur or permit to exist any
Lien upon any of its property or assets, or (b) the ability of any Loan Party or
any Subsidiary of a Loan Party to pay dividends or make any other distributions
with respect to any shares of its capital stock or any other equity interest or
participation in its profits owned by a Loan Party or a Subsidiary of a Loan
Party, or (c) the ability of any Loan Party or Subsidiary of a Loan Party to
make or repay loans or advances to the Borrower or any other Loan Party or to
Guarantee Indebtedness of the Borrower or any other Loan Party or to transfer
any of its properties or assets to the Borrower or any other Loan Party;
provided that (i) the foregoing shall not apply to restrictions and conditions
imposed by Applicable Law or by any Loan Document, (ii) the foregoing shall not
apply to restrictions and conditions existing on the date hereof and identified
on Schedule 6.13 (but shall apply to any amendment or modification expanding the
scope of any such restriction or condition, but shall not apply to any extension
or renewal thereof), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale; provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) the foregoing Section 6.13(a) shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Credit Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness, and (v) Section 6.13(a) of the foregoing
shall not apply to customary non-assignment and non-pledge provisions in any
lease, license, or any agreement relating to an IRU or a Right of Way.
Section 6.14. Amendment of Material Documents. (a) Consent to any
amendment, modification, supplement or waiver of (i) the certificate of
incorporation, by-laws or other organizational documents of any Loan Party or
(ii) any Material Agreement, in each of the foregoing cases, if such amendment,
modification, supplement or waiver would or could reasonably be expected to
result in a Material Adverse Effect.
(b) Notwithstanding the provisions of Section 6.14(a) above,
consent to any amendment, modification, supplement or waiver of any of the
provisions of any of the agreements making effective, or relating to, the
Existing Sale Leaseback Transaction (other than the termination thereof in
accordance with the OTC Documents (as such documents are escrowed pursuant to
the Escrow Agreement or if applicable, as amended, restated, renewed, replaced,
restructured, supplemented or otherwise modified in accordance with the terms of
this Credit Agreement)), any of the OTC Documents, the Escrow Agreement or the
Declaration of Trust, in each case, without the prior written consent of the
Administrative Agent; provided, however, that such prior written consent of the
Administrative Agent shall not be required in the case of any amendment,
modification, supplement or waiver of any provision of the OTC Documents (other
than the definition of "Mortgaged Property" set forth in the OTC Mortgage) which
amendment, modification, supplement or waiver (as applicable) is beneficial to
the Loan Parties.
Section 6.15. Line of Business; Changes in Business. (a) In the case of
the Borrower and its Subsidiaries, engage in any line of business other than the
Telecommunications Business, subject to the various limitations contained in
this Credit Agreement and the other Loan
98
Documents; nor substantially alter the character of the business of the Borrower
and its Subsidiaries, taken as a whole, from that conducted on the Amendment No.
9 Closing Date.
(b) In the case of Holdings, (i) engage in any business or
activity other than (V) Permitted Holdings Activities, (W) the ownership of all
of the outstanding Equity Interests in the Borrower, (X) issuances of its Equity
Interests (other than any Disqualified Stock), (Y) the incurrence of
Indebtedness to the extent permitted hereunder, and (Z) with respect to each of
the foregoing, activities directly related thereto; or (ii) own or acquire any
assets other than (A) assets acquired or used in connection with, or pursuant
to, Permitted Holdings Activities, (B) Equity Interests in the Borrower, (C)
Indebtedness of the Borrower not in excess of $75,000,000 in the aggregate, at
any time prior to January 1, 2003 and not in excess of $20,000,000 in the
aggregate, at any time on or after January 1, 2003, and (D) cash and Cash
Equivalents in an aggregate amount not exceeding $250,000 (it being understood
that amounts in excess thereof shall be promptly contributed or otherwise
distributed by Holdings to the Borrower as an additional capital contribution or
used to satisfy obligations of Holdings described in Section 6.5(a)(vii)); or
(iii) incur any liabilities (other than liabilities under the Loan Documents,
liabilities imposed by Applicable Law (including without limitation tax
liabilities), and other liabilities incidental to its existence and business and
activities permitted hereunder and under the other Loan Documents).
(c) In the case of Old WCG, engage in any business or activity
other than (i) as contemplated by, and pursuant to, the Declaration of Trust or
(ii) activities directly related to its liquidation and dissolution in
accordance with the Declaration of Trust.
(d) Permit any Joint Venture or partnership permitted by
Section 6.16 hereof to engage in any line of business which is not directly
related to the businesses of the Borrower and the Subsidiary Loan Parties.
Section 6.16. Joint Ventures or Partnerships. Enter into any Joint
Venture (other than the Existing International Joint Ventures) or partnership
(other than ▇▇▇▇▇▇▇▇ Communications Procurement, LP, a Delaware limited
partnership) (including, without limitation, by way of selling the capital stock
or other Equity Interests of a Subsidiary) unless (a) such arrangement has been
consented to by the Administrative Agent and the Required Lenders in writing,
(b) any interest received by a Loan Party in such Joint Venture or partnership
is pledged to the Administrative Agent (for the benefit of the Secured Parties)
pursuant to the Security Agreement and (c) the applicable Loan Party shall have
prepaid the Loans hereunder as required by Section 2.9(f) hereof.
Section 6.17. Receivables. Sell, discount or otherwise dispose of notes
or other obligations (including, without limitation, any rental payments) owing
to any Loan Party or any Subsidiary of a Loan Party except to the extent not
prohibited under Section 6.6 or with the prior written consent of the
Administrative Agent.
Section 6.18. ERISA Compliance. Engage in a "prohibited transaction,"
as defined in Section 406 of ERISA or Section 4975 of the Code, with respect to
any Plan or Multiemployer Plan or knowingly consent to any "party in interest"
or any "disqualified person," as such terms are defined in Section 3(14) or
ERISA and Section 4975(e)(2) of the Code, respectively,
99
engaging in any "prohibited transaction," with respect to any Plan or
Multiemployer Plan; or permit any Plan to incur any "accumulated funding
deficiency," as defined in Section 302 of ERISA or Section 412 of the Code; or
terminate any Plan in a manner which could result in the imposition of a Lien on
any property of any Loan Party or any ERISA Affiliate pursuant to Section 4068
of ERISA; or breach or knowingly permit any employee or officer or any trustee
or administrator of any Plan to breach any fiduciary responsibility imposed
under Title I of ERISA with respect to any Plan; engage in any transaction which
would result in the incurrence of a liability under Section 4069 of ERISA; or
fail to make contributions to a Plan or Multiemployer Plan which could result in
the imposition of a Lien on any property of any Loan Party or any ERISA
Affiliate pursuant to Section 302(f) of ERISA or Section 412(n) of the Code, if
the occurrence of any of the foregoing events described in this Section 6.18
(alone or in the aggregate) would result in a Material Adverse Effect.
Section 6.19. Hazardous Materials. Cause or permit any of its
properties or assets to be used to generate, manufacture, refine, transport,
treat, store, handle, dispose, transfer, produce or process Hazardous Materials,
except in compliance with all applicable Environmental Laws; nor cause or permit
any Release on, under, above or in any such property or asset in violation of
any Environmental Law or in a manner that could result in liability under any
Environmental Law or in an Environmental Claim, except in each case, as are not
reasonably likely to result in a Material Adverse Effect.
Section 6.20. Use of Proceeds of Loans. (a) Use the proceeds of Loans
hereunder other than for the purposes set forth in, and as required by, Section
5.15 hereof.
(b) Use, directly or indirectly, any portion of the proceeds
of any Loan hereunder for the purpose (whether immediate, incidental or
ultimate) of buying or carrying any Margin Stock or for any purpose that is in
violation of any of the Regulations of the Board, including, without limitation,
Regulations U and X.
Section 6.21. Fiscal Year; Fiscal Quarter. Change its fiscal year from
a fiscal year ending December 31 or change any of its fiscal quarters.
Section 6.22. Deposit Accounts; Securities Accounts. Subject to in all
cases the provisions of Section 5.16 hereof, establish any new Deposit Account,
Securities Account or other similar account or instruments after the Amendment
No. 9 Closing Date, without the prior written notice to the Administrative Agent
and, provided in all cases, before any funds are deposited or transferred into
any such account or before any instrument is created, such account or
instrument, as applicable, shall be subject to an applicable Control Agreement.
Section 6.23. Key Employee Retention Program; Other Programs for Senior
Management. (a) Amend, supplement or otherwise modify or replace the Key
Employee Retention Program (including, without limitation, to increase any
existing benefits or to provide additional benefits thereunder).
(b) Adopt any employee benefit plan or other program which
benefits the senior management of Holdings, the Borrower and/or any other
Subsidiary thereof, (i) unless such plan or program has been approved by (A) the
Board of Directors of Holdings and (B) those
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members of the Board of Directors of Holdings that have been selected and/or
nominated by the Permitted Investors, provided, that the unwind has not occurred
as contemplated by paragraph 5 of the Escrow Agreement and such members have, or
should have, resigned from such Board of Directors in accordance with the terms
and provisions of the Escrow Agreement; or (ii) unless it is an employee benefit
plan or program in which officers and employees participate on the same basis
and which does not favor senior management in any respect.
ARTICLE 7
EVENTS OF DEFAULT
In the case of the happening and during the continuance of any of the
following events (herein called "Events of Default"):
(a) any representation, warranty, certification or statement
made or deemed made by, or on behalf of, a Loan Party in this Credit Agreement
or any other Loan Document to which it is a party (or any amendment,
modification or waiver of any of the foregoing) or in connection with this
Credit Agreement or any Loan Document (or any amendment, modification or waiver
of any of the foregoing) or any representation, warranty, certification or
statement made or deemed made by, or on behalf of, any Loan Party in any report,
financial statement, certificate or other document furnished by, or on behalf
of, any Loan Party, to the Administrative Agent, any of the Agents, any Issuing
Bank or any Lender pursuant to, or in connection with, this Credit Agreement or
any other Loan Document (or any amendment, modification or waiver of any of the
foregoing or in connection with the effectiveness of any of the foregoing),
shall prove to have been false or misleading in any material respect when made
(or deemed made) or delivered;
(b) default shall be made in the payment of principal of any
Loan or any reimbursement obligation with respect to a Letter of Credit as and
when the same shall be due and payable, whether at the due date thereof, by
reason of maturity, mandatory prepayment, acceleration or otherwise;
(c) default shall be made in the payment of interest on any
Loan, the Commitment Fees, the Letter of Credit Fees or other amounts (other
than an amount referred to in paragraph (b) above) payable to the Administrative
Agent, any of the other Agents, any Issuing Bank or a Lender under this Credit
Agreement, under any fee letter with respect to any Letter of Credit or under
the Administration Fee Letter, when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise, and such default shall continue
unremedied for three (3) Business Days;
(d) default shall be made in the due observance or performance
of any covenant, condition or agreement contained in Sections 5.2 (but only with
respect to the existence of Holdings and the Borrower), 5.4, 5.10, 5.11, 5.16 or
in Article 6 (other than Section 6.1, Section 6.2 or Section 6.13) of this
Credit Agreement;
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(e) (i) default shall be made in the due observance or
performance of any covenant, condition or agreement contained in Section 6.1,
Section 6.2 or Section 6.13 of this Credit Agreement; provided, that in the
event that any such default described in this clause (i) is capable of being
cured, then such default shall not be an Event of Default hereunder until such
default shall have continued unremedied for five (5) Business Days after the
earlier to occur of (X) a Loan Party receives notice thereof from the
Administrative Agent, or (Y) after an Authorized Officer or other executive
officer of a Loan Party obtains knowledge of such occurrence; or (ii) default
shall be made in the due observance or performance of any agreement contained in
Section 4(c) of the Security Agreement and such default shall continue
unremedied for thirty (30) days after the occurrence thereof;
(f) default shall be made by any Loan Party in the due
observance or performance of any other covenant, condition or agreement to be
observed or performed pursuant to the terms of this Credit Agreement or any
other Loan Document (other than those covered by paragraphs (a), (b), (c), (d)
or (e) of this Article 7), and such default shall continue unremedied for thirty
(30) days after the earlier to occur of (i) a Loan Party receives notice thereof
from the Administrative Agent, or (ii) five (5) Business Days after an
Authorized Officer or other executive officer of a Loan Party obtains knowledge
of such occurrence;
(g) default shall be made with respect to any payment, when
due, of any Material Indebtedness (other than the Obligations) of any Loan
Party, or any other default shall occur, if the effect of such non-payment
default is to accelerate the maturity of such Material Indebtedness or to permit
the holder or holders thereof (or any trustee or agent of their behalf) to cause
such Material Indebtedness to become due prior to its stated maturity, and such
default shall not be remedied, cured, waived or consented to within the period
of grace with respect thereto, or any other circumstance arises (other than the
mere passage of time) by reason of which any Loan Party is required to prepay,
repurchase, redeem or otherwise defease or offer to holders of Material
Indebtedness of any such Person, the opportunity to have prepaid, repurchased,
redeemed or defeased, any such Material Indebtedness; or any such Material
Indebtedness shall become, or be declared to be, due and payable prior to its
stated maturity (provided that the foregoing clause of this paragraph (g) shall
not apply to secured Indebtedness permitted hereunder that becomes due prior to
its stated maturity as a result of the voluntary sale or transfer as permitted
hereunder of the property or assets securing such Indebtedness);
(h) any Loan Party shall generally not pay or shall become
unable to pay its debts as they become due or shall admit in writing its
inability to pay its debts, or shall make a general assignment for the benefit
of creditors; or any Loan Party shall commence any case, proceeding or other
action seeking to have an order for relief entered on its behalf as a debtor or
to adjudicate it a bankrupt or insolvent or seeking reorganization, arrangement,
adjustment, liquidation, dissolution or composition of it or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property or shall file an
answer or other pleading in any such case, proceeding or other action admitting
the material allegations of any petition, complaint or similar pleading filed
against it or consenting to the relief sought therein; or any Loan Party shall
take any action to authorize, or in contemplation of, any of the foregoing;
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(i) any involuntary case, proceeding or other action against
any Loan Party shall be commenced seeking to have an order for relief entered
against it as debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property, and such case, proceeding or other action (i)
results in the entry of any order for relief against it, or (ii) shall remain
undismissed for a period of sixty (60) days;
(j) one or more trial court judgment(s), arbitration or
binding mediation award(s) and/or settlement(s) for the payment of money in
excess of $15,000,000 in the aggregate, to the extent not covered by insurance
(and excluding a judgment, award or settlement with respect to any suit,
proceeding, arbitration or mediation commenced against a Loan Party prior to the
Amendment No. 9 Closing Date, but only up to the aggregate amount of the
reserves established by Holdings for contingent liabilities as set forth in Note
6 to the condensed consolidated financial statements contained in Holdings' Form
10-Q filed with the Securities and Exchange Commission for the quarter ended
June 30, 2002) shall be rendered against, or entered into by, any Loan Party and
either (i) within thirty (30) days from the entry of any such judgment or from
the date of any such award or settlement (as applicable), the same shall not
have been discharged or vacated, or in the case of a judgment or award, stayed
pending appeal, or shall not have been discharged or vacated within thirty (30)
days from the entry of a final order of affirmance on appeal or (ii) enforcement
proceedings shall be commenced by any creditor to attach or levy upon any assets
of a Loan Party with respect to any such judgment, award or settlement;
(k) (i) failure by any Loan Party or ERISA Affiliate to make
any contributions required to be made to a Plan subject to Title IV of ERISA or
a Multiemployer Plan, (ii) any accumulated funding deficiency (as defined in
Section 302 of ERISA or Section 412 of the Code) shall exist with respect to any
Plan (whether or not waived), (ii) the present value of all benefits under all
Plans subject to Title IV of ERISA determined on a plan termination basis (based
on those actuarial assumptions prescribed by the PBGC for purposes of Section
4044 of ERISA) materially exceeds, in the aggregate, as of the last annual
valuation date applicable thereto, the fair market value of the assets of such
Plans allocable to such benefits, (iii) any Loan Party or ERISA Affiliate shall
have been notified by the sponsor of a Multiemployer Plan that it has incurred
withdrawal liability to such Multiemployer Plan, or that a Multiemployer Plan is
in reorganization or is being terminated, (iv) a Reportable Event with respect
to a Plan shall have occurred, (v) the withdrawal by any Loan Party or ERISA
Affiliate from a Plan during a plan year in which it was a substantial employer
(within the meaning of section 4001(a)(2) or 4062(e) of ERISA), (vi) the
termination of a Plan, or the filing of a notice of intent to terminate a Plan
under section 4041(c) of ERISA, (vii) the institution of proceedings to
terminate, or the appointment of a trustee with respect to, a Plan by the PBGC,
(viii) any other event or condition which could constitute grounds under section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan, or (ix) the imposition of a Lien pursuant to section 412
of the Code or section 302 of ERISA as to any Loan Party or ERISA Affiliate, if
the occurrence of any of the foregoing events described in this paragraph (k)
(alone or in the aggregate) would result, or would be reasonably likely to
result, in a Material Adverse Effect;
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(l) any Loan Party or any Subsidiary of any Loan Party is
liable for a payment under any Environmental Law or any Environmental Claim
which is, or is reasonably likely to result in a Material Adverse Effect;
(m) (i) this Credit Agreement, the Security Agreement, any
Mortgage, or any other Loan Document shall, for any reason, not be or shall
cease to be in full force and effect (except in the case of any Loan Document
other than this Credit Agreement or the Security Agreement, in accordance with
the express terms and provisions hereof or of such document) or shall be
declared null and void by a Governmental Authority with competent jurisdiction,
or any of the Loan Documents shall not give or shall cease to give the
Administrative Agent, the other Agents, the Lenders or any of the other Secured
Parties (as applicable), the meaningful rights, powers and privileges purported
to be created thereby or shall not give or shall cease to give the
Administrative Agent the Liens, or the meaningful rights, powers and privileges
purported to be created thereby in favor of the Administrative Agent for the
benefit of the Secured Parties, superior to and prior to the rights of all third
Persons and subject to no other Liens (other than Permitted Encumbrances), or
(ii) the validity or enforceability of the Liens granted, to be granted, or
purported to be granted, by any of the Loan Documents shall be contested in
writing or in a publicly issued statement by any Loan Party or any Subsidiary of
a Loan Party; provided, that no such defects pursuant to clause (i) above with
respect to a Lien granted or purported to be granted by any of the Loan
Documents shall give rise to an Event of Default under this paragraph (m) unless
such defects shall adversely affect the aggregate value of the Collateral or
Mortgaged Real Property Assets (taken as a whole) by an aggregate amount of
$10,000,000 or more;
(n) any event of default shall occur and be continuing under
any of the OTC Documents;
(o) a Change in Control shall occur; or
(p) at any time, for any reason, any Loan Party shall (in
writing or in a publicly issued statement) repudiate, or seek to repudiate, any
of its Obligations, including without limitation, in the case of a Loan Party
other than the Borrower, its Guarantee under any Loan Document;
then, in every such event and at any time thereafter during the continuance of
such event, the Administrative Agent may, and if directed by the Required
Lenders shall, by notice to the Borrower, take either or both of the following
actions, at the same or different times: (x) terminate forthwith the Revolving
Letter of Credit Commitments and/or (y) declare the principal of and the accrued
and unpaid interest on the Loans (and any Notes hereunder) and all other amounts
payable hereunder (or thereunder) to be forthwith due and payable, whereupon the
same shall become and be forthwith due and payable, without presentment, demand,
protest, notice of acceleration or other notice of any kind, all of which are
hereby expressly waived, anything in this Credit Agreement (or in any Note
hereunder) to the contrary notwithstanding. If an Event of Default specified in
paragraphs (h) or (i) above shall have occurred, without any notice to the
Borrower, the Revolving Letter of Credit Commitments shall automatically
terminate and the principal of, and accrued and unpaid interest on, the Loans
(and any Notes hereunder) and all other amounts payable hereunder and thereunder
shall automatically become
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due and payable without presentment, demand, protest, or other notice of any
kind, all of which are hereby expressly waived, anything in this Credit
Agreement or any Note hereunder to the contrary notwithstanding. Such remedies
shall be in addition to any other remedy available to the Administrative Agent,
the Lenders or any of the other Secured Parties pursuant to Applicable Law or
otherwise.
ARTICLE 8
GUARANTY
Section 8.1. Guaranty. (a) Each Guarantor unconditionally and
irrevocably guarantees to the Secured Parties the due and punctual payment by,
and performance of, the Obligations (including, without limitation,
Post-Petition Interest). Each Guarantor further agrees that the Obligations may
be increased, extended or renewed, in whole or in part, without notice or
further assent from it (except as may be otherwise required herein), and it will
remain bound upon this Guaranty notwithstanding any increase, extension or
renewal of any Obligation.
(b) Each Guarantor waives acceptance hereof, presentation to,
demand for payment from and protest to, as the case may be, any Loan Party or
any other guarantor of any of the Obligations, and also waives notice of protest
for nonpayment, notice of acceleration, notice of intent to accelerate and any
other notice not expressly provided for herein. The obligations of each
Guarantor hereunder shall not be released, discharged or otherwise affected by
(i) the failure of the Administrative Agent or any other Secured Party (as
appropriate) to assert any claim or demand or to enforce any right or remedy
against the Borrower or any Guarantor or any other guarantor under the
provisions of this Credit Agreement, any Loan Document, any Lender Hedging
Agreement or any other agreement or otherwise; (ii) any extension or renewal of
any provision hereof or thereof; (iii) the failure of any Secured Party to
obtain the consent of the Guarantor with respect to any rescission, waiver,
compromise, acceleration, supplement, amendment or modification of any of the
terms or provisions of this Credit Agreement, any Notes hereunder, any Loan
Document, any Lender Hedging Agreement or of any other agreement; (iv) the
release, exchange, waiver, foreclosure, impairment, non-perfection or invalidity
of any security held by the Administrative Agent, or any guarantee or other
liability of any third party, for the Obligations or any of them; (v) the
failure of the Administrative Agent or any other Secured Party (as appropriate)
to exercise any right or remedy against any other Guarantor or any other
guarantor of the Obligations; (vi) the release or substitution of any Guarantor
or guarantor; (vii) any change in the corporate existence, structure or
ownership of the Borrower, any Guarantor or other guarantor or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the Borrower,
any Guarantor or other guarantor or its assets, or any resulting release or
discharge of any obligation of the Borrower, any Guarantor or other guarantor
contained in any Loan Document or Lender Hedging Agreement; (viii) the existence
of any claim, set-off or other rights which any Guarantor may have at any time
against the Borrower, any other Guarantor, any Agent, any Secured Party or any
other Person, whether or not arising in connection herewith or any unrelated
transaction (provided that nothing herein shall prevent the assertion of any
such claim by separate suit or compulsory counterclaim); or (ix) any provision
of Applicable Law or regulation purporting to prohibit the payment by the
Borrower or any Guarantor of any amount payable by it under any Loan Document.
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(c) Each Guarantor further agrees that this Guaranty
constitutes a guaranty of performance and of payment when due and not just of
collection, and waives any right to require that any resort be had by the
Administrative Agent or any other Secured Party (as appropriate) to any security
held for payment of the Obligations or to any balance of any deposit, account or
credit on the books of the Administrative Agent or any other Secured Party in
favor of the Borrower or any Guarantor, or to any other Person.
(d) Each Guarantor hereby expressly assumes all
responsibilities to remain informed of the financial condition of the Borrower,
the Guarantors and any other guarantors and any circumstances affecting the
Collateral or the Mortgaged Real Property Assets or the ability of the Borrower
to perform under this Credit Agreement, the other Loan Documents and any Lender
Hedging Agreement.
(e) Each Guarantor's obligations under the Guaranty shall not
be released, discharged or otherwise affected by the genuineness, validity,
regularity or enforceability of the Obligations, any Notes hereunder or any
other instrument evidencing any Obligations, or by the existence, validity,
enforceability, perfection, or extent of any Lien on any Collateral or Real
Property Asset securing any Obligation or by any other circumstance relating to
the Obligations or otherwise which might otherwise constitute a defense to this
Guaranty. None of the Agents, the Issuing Banks or the Lenders makes any
representation or warranty with respect to any such circumstances or have any
duty or responsibility whatsoever to any Guarantor in respect to the management
and maintenance of the Obligations or any collateral security for the
Obligations.
Section 8.2. No Impairment of Guaranty, etc. The obligations of each
Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (except indefeasible payment and
performance in full in cash of the Obligations), including, without limitation,
any claim of waiver, release, surrender, alteration or compromise, and shall not
be subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Administrative Agent or any other
Secured Party to assert any claim or demand or to enforce any right or remedy
under this Credit Agreement, any Loan Document, any Lender Hedging Agreement, or
any other agreement, by any waiver or modification of any provision hereof or
thereof, by any default, failure or delay, willful or otherwise, in the
performance of the Obligations, or by any other act or thing or omission or
delay to do any other act or thing which may or might in any manner or to any
extent vary the risk of such Guarantor or would otherwise operate as a discharge
of such Guarantor as a matter of law, unless and until the Bank Credit
Termination Date.
Section 8.3. Continuation and Reinstatement, etc. (a) Each Guarantor
further agrees that its Guaranty hereunder shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any Obligation is rescinded or must otherwise be restored or returned by any
Secured Party upon the bankruptcy or reorganization of the Borrower or a
Guarantor, or otherwise. In furtherance of the provisions of this Article 8, and
not in limitation of any other right which any Secured Party may have at law or
in equity against the Borrower, a Guarantor or any other Person by virtue
hereof, upon failure of the Borrower to pay
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any Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice or otherwise, each Guarantor hereby promises to and
will, upon receipt of written demand by the Administrative Agent (acting at the
request of a Secured Party), forthwith pay or cause to be paid to the
Administrative Agent for the benefit of the Secured Parties (as applicable) in
cash an amount equal to the unpaid amount of such Obligation with interest
thereon at a rate of interest equal to the rate specified in Section 2.10(a)
hereof, and thereupon the Administrative Agent shall assign such Obligation,
together with all security interests, if any, then held by the Administrative
Agent in respect of such Obligation, to the Guarantor or Guarantors making such
payment; such assignment to be subordinate and junior to the rights of the
Administrative Agent on behalf of the Secured Parties with regard to amounts
payable by the Borrower in connection with the remaining unpaid Obligations
(including, without limitation, Post-Petition Interest) and to be pro tanto to
the extent to which the Obligation in question was discharged by the Guarantor
or Guarantors making such payments.
(b) All rights of a Guarantor against the Borrower, arising as
a result of the payment by such Guarantor of any sums to the Administrative
Agent for the benefit of the Secured Parties or directly to the Lenders
hereunder by way of right of subrogation or otherwise, shall in all respects be
subordinated and junior in right of payment to, and shall not be exercised by
such Guarantor until and unless, the prior indefeasible payment in full in cash
of all the Obligations (including, without limitation, Post-Petition Interest),
all Revolving Letter of Credit Commitments shall have expired or otherwise been
terminated in their entirety, all Letters of Credit shall have expired or been
terminated, or cancelled and all Lender Hedging Agreements have been terminated.
If any amount shall be paid to such Guarantor for the account of the Borrower,
such amount shall be held in trust for the benefit of the Administrative Agent,
segregated from such Guarantor's own assets, and shall forthwith be paid to the
Administrative Agent on behalf of the Secured Parties to be credited and applied
to the Obligations, whether matured or unmatured.
Section 8.4. Limitation on Guaranteed Amount, etc. Notwithstanding any
other provision of this Article 8, the amount guaranteed by each Guarantor
hereunder shall be limited to the extent, if any, required so that its
obligations under this Article 8 shall not be subject to avoidance under Section
548 of the Bankruptcy Code or to being set aside or annulled under any
Applicable Law relating to fraud on creditors. In determining the limitations,
if any, on the amount of any Guarantor's obligations hereunder pursuant to the
preceding sentence, it is the intention of the parties hereto that any rights of
subrogation or contribution which such Guarantor may have under this Article 8,
any other agreement (including, without limitation, the Contribution Agreement)
or Applicable Law shall be taken into account.
Section 8.5. Stay of Acceleration. If acceleration of the time for
payment of any amount payable by a Loan Party under any Loan Document is stayed
upon the insolvency, bankruptcy or reorganization of such Loan Party, all such
amounts otherwise subject to acceleration under the terms of such Loan Document
shall nonetheless be payable by each of the Guarantors (other than the
applicable Loan Party) under this Article 8 forthwith on demand by the
Administrative Agent.
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ARTICLE 9
CASH COLLATERAL
Section 9.1. Cash Collateral Account. In addition to the L/C Cash
Collateral Account, there shall be established with the Administrative Agent an
account (the "Cash Collateral Account") in the name of the Administrative Agent
(for the benefit of the Secured Parties), into which the Borrower may from time
to time deposit Dollars pursuant to, and in accordance with Section 2.9(l)
hereof. Except to the extent otherwise provided in this Article 9, the Cash
Collateral Account shall be under the sole dominion and control of the
Administrative Agent.
Section 9.2. Investment of Funds. (a) The Administrative Agent is
hereby authorized and directed to invest and reinvest the funds from time to
time deposited into the Cash Collateral Account or the L/C Cash Collateral
Account, so long as no Event of Default has occurred and is continuing, on the
instructions of the Borrower (provided that any such instructions given verbally
shall be confirmed promptly in writing) or, if the Borrower shall fail to give
such instructions upon delivery of any such funds, in the sole discretion of the
Administrative Agent; provided that in no event may the Borrower give
instructions to the Administrative Agent to, or may the Administrative Agent in
its discretion, invest or reinvest funds in the Cash Collateral Account or the
L/C Cash Collateral Account in any Investment other than cash held in a deposit
account with Bank of America, N.A. or a time deposit issued by Bank of America,
N.A.
(b) Any net income or gain on the investment of funds from
time to time held in the Cash Collateral Account or the L/C Cash Collateral
Account, shall be for the account of the Borrower and shall be promptly
reinvested by the Administrative Agent as a part of the Cash Collateral Account
or the L/C Cash Collateral Account (as applicable); and any net loss on any such
investment shall be for the account of the Borrower and shall be charged against
the Cash Collateral Account or the L/C Cash Collateral Account (as applicable).
(c) None of the Agents, the Lenders or other Secured Parties
shall be a trustee for any of the Loan Parties, or shall have any obligations or
responsibilities, or shall be liable for anything done or not done, in
connection with the Cash Collateral Account or the L/C Cash Collateral Account,
except as expressly provided herein and except that the Administrative Agent
shall have the obligations of a secured party under the UCC. None of the Agents,
the Lenders or the other Secured Parties shall have any obligation or
responsibility or shall be liable in any way for any investment decision made in
accordance with this Section 9.2 or for any decrease in the value of the
investments held in the Cash Collateral Account or the L/C Cash Collateral
Account.
Section 9.3. Grant of Security Interest. For value received and to
induce each of the Issuing Banks to issue Letters of Credit and the Lenders to
enter into Amendment No. 9, to continue and combine the Existing Loans and to
acquire participations in Letters of Credit from time to time as provided for in
this Credit Agreement, as security for the payment of all of the Obligations,
each of the Loan Parties hereby assigns to the Administrative Agent (for the
benefit of the Secured Parties) and grants to the Administrative Agent (for the
benefit of the Secured Parties), a first and prior Lien upon all of such Loan
Party's rights in and to the Cash Collateral Account or the L/C Cash Collateral
Account, all cash, documents, instruments, securities and
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other investment property from time to time held therein, and all rights
pertaining to investments of funds in the Cash Collateral Account or the L/C
Cash Collateral Account and all products and proceeds of any of the foregoing.
All cash, documents, instruments, securities and other investment property from
time to time on deposit in the Cash Collateral Account or the L/C Cash
Collateral Account, and all rights pertaining to investments of funds in the
Cash Collateral Account or the L/C Cash Collateral Account shall immediately and
without any need for any further action on the part of any of the Loan Parties,
the Administrative Agent or any other Secured Party, become subject to the Lien
set forth in this Section 9.3, be deemed Collateral for all purposes hereof and
the Security Agreement and be subject to the provisions of this Credit Agreement
and the Security Agreement.
Section 9.4. Remedies. At any time during the continuation of an Event
of Default, the Administrative Agent may sell any documents, instruments,
securities and other investment property held in the Cash Collateral Account and
may immediately apply the proceeds thereof and any other cash held in the Cash
Collateral Account in accordance with Section 10.2 hereof. The Administrative
Agent may sell any documents, instruments, securities and other investment
property held in the L/C Cash Collateral Account at any time in order to apply
the proceeds thereof as provided in Section 2.4 hereof.
ARTICLE 10
THE AGENTS AND THE ISSUING BANKS
Section 10.1. Administration by the Administrative Agent. (a) The
general administration of the Loan Documents and any other documents
contemplated by this Credit Agreement or any other Loan Document shall be by the
Administrative Agent or its respective designees. Except as otherwise expressly
provided herein, each of the Issuing Banks and each of the Lenders hereby
irrevocably authorizes the Administrative Agent, at its discretion, to take or
refrain from taking such actions as agent on its behalf and to exercise or
refrain from exercising such rights and/or powers under the Loan Documents, any
Notes hereunder and any other documents contemplated by this Credit Agreement or
any other Loan Document as are expressly delegated by the terms hereof or
thereof, as appropriate, to the Administrative Agent together with all actions
and all powers reasonably incidental thereto. None of the Agents shall have any
duties, responsibilities or obligations except as expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (i) the Agents
shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default or Event of Default has occurred and is continuing, (ii) the
Agents shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers contemplated by the
Loan Documents that an Agent is expressly required to exercise after being
directed to do so in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.11 hereof), and (iii) except as expressly set forth in
the Loan Documents, the Agents shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to Holdings,
the Borrower or any of their respective Subsidiaries that is communicated to, or
obtained by, any institution serving as an Agent or any of its Affiliates in any
capacity.
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(b) The Secured Parties hereby authorize the Administrative
Agent (in its sole discretion):
(i) in connection with (A) the sale, exchange or
other disposition of any asset included in the Collateral, of any Mortgaged Real
Property Asset or of all of the Equity Interests of any Guarantor, or (B) any
dissolution or liquidation of any Subsidiary, in each case to the extent
undertaken in accordance with the terms of this Credit Agreement; and, provided
no Default or Event of Default has occurred and is then continuing, to release a
Lien granted to it (for the benefit of the Secured Parties) on such asset,
Mortgaged Real Property Asset or Equity Interest and/or to release such
Guarantor from its obligations hereunder and under any other applicable Loan
Documents;
(ii) in connection with any refinancing of a portion
of the Indebtedness and/or the Obligations under this Credit Agreement to the
extent permitted by Section 6.1(b) hereof, to release a Lien granted to it (for
the benefit of the Secured Parties) on any Collateral or Real Property Asset
which is to secure such refinancing Indebtedness;
(iii) in connection with the acquisition or lease of
any asset subject to a Lien permitted by Section 6.2(e), 6.2(t) or 6.2(u)
hereof, where the applicable Loan Party acquiring or leasing such asset is
prohibited by a contractual arrangement entered into in connection with such
acquisition or lease, from allowing the Administrative Agent (for the benefit of
the Secured Parties) to have a Lien on such asset; and provided that no Default
or Event of Default has occurred and is then continuing, to release a Lien
granted to the Administrative Agent (for the benefit of the Secured Parties) on
such asset being acquired or leased;
(iv) to determine that the cost to the Borrower or
another Loan Party is disproportionate to the benefit to be realized by the
Agents, the Issuing Banks, the Lenders and/or the other Secured Parties by
perfecting a Lien in a given asset or group of assets included in the Collateral
or in any Real Property Asset, and that the Borrower or other Loan Party should
not be required to perfect such Lien in favor of the Administrative Agent (for
the benefit of the Secured Parties);
(v) to appoint subagents to be the holder of record
of a Lien to be granted to the Administrative Agent (for the benefit of the
Secured Parties) or to hold on behalf of the Administrative Agent such Lien, or
Collateral or any instruments relating thereto;
(vi) to enter into and perform its obligations under
the other Loan Documents; and
(vii) to enter into intercreditor and/or
subordination agreements on terms acceptable to the Administrative Agent with
Persons who have been granted Liens which are permitted pursuant to Section 6.2
hereof.
The Administrative Agent hereby agrees to release the applicable Lien
granted to it (for the benefit of the Secured Parties) pursuant to any Loan
Document in the case of any event described in clause (b)(i), (b)(ii), or
(b)(iii) above. Upon the termination of any contractual obligation of the type
described in clause (b)(iii) above, the applicable Loan Party owning or
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leasing the subject asset shall promptly give notice of such termination to the
Administrative Agent and shall promptly ▇▇▇▇▇ ▇ ▇▇▇▇ on the subject property or
asset.
Upon, or after giving effect to, the Bank Credit Termination Date, (i)
the Liens created by the Loan Documents shall automatically and immediately
terminate and all rights to the Collateral and the Mortgaged Real Property
Assets shall revert to the applicable Loan Parties, and (ii) the Administrative
Agent shall, upon the Borrower's request and at the Borrower's sole cost and
expense, (X) return to the Borrower such of the Collateral in its possession as
shall not have been sold or otherwise disposed of, or applied, pursuant to the
terms of the Loan Documents and (Y) execute and deliver to the Borrower such
agreements, instruments and other documents (including, without limitation,
termination of Control Agreements, releases of Mortgages, UCC terminations and
other releases) which shall all be in form and substance reasonably satisfactory
to the Administrative Agent, as the Borrower shall reasonably request to
evidence such termination. Such execution and delivery of documents by the
Administrative Agent shall be without any representation, warranty or recourse
whatsoever. The Secured Parties hereby agree to the provisions of this
paragraph.
Section 10.2. Application of Proceeds. As between the Administrative
Agent on the one hand and the Secured Parties on the other hand, and
notwithstanding anything else to the contrary contained in this Credit Agreement
or any other Loan Document, (a) any amounts received by the Administrative Agent
pursuant to the Declaration of Trust or otherwise in connection with the
liquidation of Old WCG; or (b) if an Event of Default shall have occurred and be
continuing, the balance in any account of any Loan Party with a Lender, all
income on the Collateral and the Mortgaged Real Property Assets, and all
proceeds of the Collateral or any Mortgaged Real Property Asset and all other
amounts or payments received under this Credit Agreement or any other Loan
Document (including as a result of or in connection with a proceeding under the
Bankruptcy Code or any other similar state law proceeding involving the Borrower
or any other Loan Party) shall be applied by the Administrative Agent to the
payment of the Obligations in the following order:
(i) FIRST, to pay all unreimbursed costs and expenses paid or
incurred by the Administrative Agent in enforcing this Credit
Agreement or any other Loan Document, in realizing on or
protecting any Collateral or any Mortgaged Real Property
Asset, and in enforcing or collecting any Obligations or any
Guaranty thereof, including, without limitation, court costs,
reasonable attorneys' fees and expenses and reasonable
financial consultants' fees incurred by the Administrative
Agent;
(ii) SECOND, to pay all other unreimbursed costs and expenses of
the Administrative Agent which are payable by the Borrower or
any of the other Loan Parties pursuant to any of the Loan
Documents, and then all unreimbursed costs and expenses of the
Lenders which are payable pursuant to this Credit Agreement;
(iii) THIRD, to pay the accrued but unpaid Commitment Fees, Letter
of Credit Fees and unpaid interest on the Loans, on a pro rata
basis determined in accordance with amounts owed with respect
to the foregoing;
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(iv) FOURTH, to pay the principal outstanding balance of the Loans
(with amounts payable to each Lender to be determined in
accordance with the amount of outstanding Loans owed to such
Lender), to cash collateralize Letters of Credit in accordance
with the terms of this Credit Agreement (to the extent not
already done) and to pay L/C Disbursements, on a pro rata
basis determined in accordance with amounts owed with respect
to the foregoing;
(v) FIFTH, to pay Hedging Obligations on a pro rata basis
determined in accordance with amounts owed with respect to
such obligations;
(vi) SIXTH, to pay the remainder of the Obligations or any other
amounts then due under this Credit Agreement or any other Loan
Document; and
(vii) SEVENTH, the balance, if any, after all Obligations have been
paid in full in cash, shall be returned to the Borrower or
paid over to such other Person as a court of competent
jurisdiction shall direct.
All amounts to be paid to any Lender or other Secured Party by the
Administrative Agent shall be credited to that Lender or other Secured Party,
after collection by the Administrative Agent, in immediately available funds
either by wire transfer or deposit in such Lender's or other Secured Party's
correspondent account with the Administrative Agent, or as such Lender or other
Secured Party and the Administrative Agent shall agree in writing from time to
time.
Section 10.3. Right of Set-Off; Sharing of Set-offs; Defaulting Lender.
(a) If an Event of Default shall have occurred and be continuing, each Lender,
each Issuing Bank and each of their respective Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by Applicable
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 obligations at any time
owing by such Lender, Issuing Bank or Affiliate to or for the credit or the
account of the Borrower, Holdings or any other Loan Party against any and all of
the obligations of the Borrower, Holdings or any other Loan Party, as the case
may be, now or hereafter existing under this Credit Agreement or any of the
other Loan Documents held by such Lender, Issuing Bank or Affiliate,
irrespective of whether or not such Lender, Issuing Bank or affiliate shall have
made any demand under this Credit Agreement and although such obligations may be
unmatured. The rights of each Lender, each Issuing Bank and each affiliate under
this Section 10.3 are in addition to other rights and remedies (including other
rights of setoff) which such Lender or Issuing Bank or affiliate may have. Any
Lender or Issuing Bank agrees promptly to notify the applicable Loan Party after
any such set-off; provided, that any failure to provide such notice shall not
affect the validity or enforceability of any such set-off.
(b) If any Lender shall, by exercising any right of banker's
lien, set-off or counterclaim (including, without limitation, a Secured Claim
under Section 506 of the Bankruptcy Code or other security or interest arising
from, or in lieu of, such secured claim and received by such Lender under any
applicable bankruptcy, insolvency or other similar law) or otherwise, obtain
payment in respect of any principal of or interest on any of its Loans or
participations in Letters of Credit resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Loans and participations
in Letters of Credit and
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accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in Letters of Credit of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Loans and
participations in Letters of Credit; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to (X) any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Credit Agreement (including, without limitation, pursuant to Section 2.9)
and (Y) any payment obtained by a Lender as consideration for the assignment of,
or sale of a participation in, any of its Loans or participations in Letters of
Credit to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this Section
10.3(b) shall apply. The Borrower consents to the foregoing and agrees, to the
extent it may effectively do so under Applicable Law, that any Lender acquiring
a participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of banker's lien, set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(c) The Administrative Agent is hereby authorized at any time
and from time to time, to the fullest extent permitted by Applicable Law and
notwithstanding any provision herein to the contrary, to set off and apply any
and all amounts received by the Administrative Agent for the account of a
Defaulting Lender to the satisfaction of the unpaid obligations owing by such
Defaulting Lender to the Administrative Agent or an Issuing Bank and the rights
of such Defaulting Lender with respect to all such amounts shall be subject and
subordinate to the rights of the Administrative Agent and the Issuing Banks, as
the case may be, to be paid the amounts owing to it by such Defaulting Lender.
Section 10.4. Notice to the Lenders. Upon receipt by the Administrative
Agent or any Issuing Bank from any of the Loan Parties of any communication
calling for an action on the part of the Lenders or the Revolving Letter of
Credit Lenders, as the case may be, or upon written notice to the Administrative
Agent of any Event of Default, the Administrative Agent or the applicable
Issuing Bank (as appropriate) will in turn promptly inform the other Lenders or
the Revolving Letter of Credit Lenders, as the case may be, in writing (which
shall include facsimile communications) of the nature of such communication or
of the Event of Default, as the case may be. No Agent or Issuing Bank shall be
deemed to have knowledge of any Default or Event of Default unless and until
written notice thereof is given to such Agent or such Issuing Bank by Holdings,
the Borrower, the Administrative Agent or a Lender.
Section 10.5. Liability of the Administrative Agent, the Other Agents
and the Issuing Banks. (a) The Administrative Agent, any of the other Agents or
any Issuing Bank, when acting on behalf of the Lenders (or in the case of the
Administrative Agent, when acting on behalf of the Secured Parties), may execute
any of its duties under this Credit Agreement or the other Loan Documents by or
through its directors, officers, agents, or employees and none of the
Administrative Agent, the other Agents, the Issuing Banks or their respective
officers, agents or employees shall be liable to the Lenders (or in the case of
the Administrative Agent and its
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directors, officers, agents or employees, the Secured Parties) or any of them
for any action taken or omitted to be taken in good faith, nor be responsible to
the Lenders (or in the case of the Administrative Agent and its directors,
officers, agents or employees, the Secured Parties) or to any of them for the
consequences of any oversight or error of judgment, or for any loss, unless the
same shall happen through its gross negligence or willful misconduct as
determined by a final and non-appealable order or judgment of a court of
competent jurisdiction. The Administrative Agent, each of the other Agents, each
Issuing Bank and their respective directors, officers, agents, and employees
shall in no event be liable to the Lenders (or in the case of the Administrative
Agent and its directors, officers, agents or employees, the Secured Parties) or
to any of them for any action taken or omitted to be taken by it pursuant to
instructions received by it from, or with the consent of, the Required Lenders,
the Required Revolving Lenders or such number or percentage of the Lenders as
shall be necessary as provided in Section 11.11, as the case may be, or in
reliance upon the advice of counsel selected by it. Without limiting the
foregoing, none of the Administrative Agent, the other Agent, the Issuing Banks
or any of their respective directors, officers, employees, or agents shall be
responsible to any of the Lenders (or in the case of the Administrative Agent
and its directors, officers, agents or employees, the Secured Parties) for or
have any duty to ascertain or inquire into the due execution, validity,
genuineness, effectiveness, sufficiency, or enforceability of, or for any
statement, warranty, or representation in, or for the perfection of any security
interest or Lien contemplated by, this Credit Agreement, any other Loan Document
or any related agreement, instrument, document or order, or for the contents of
any certificate, report or other document delivered in connection with any Loan
Document or for freedom of any of the Collateral or any of the Real Property
Assets from prior Liens or security interests, or shall be required to ascertain
or to make any inquiry concerning the performance or observance by the Borrower
or any other Loan Party of any of the terms, conditions, covenants, or
agreements of this Credit Agreement, any other Loan Document, or any related
agreement, instrument, document, or order.
(b) None of the Administrative Agent (in its capacity as agent
for the Lenders and the other Secured Parties), any other Agent (in its capacity
as agent for the Lenders), any Issuing Bank or any of their respective
directors, officers, employees, or agents shall have any responsibility to the
Borrower or any other Loan Party on account of the failure or delay in
performance or breach by any of the Lenders of any of such Lender's obligations
under this Credit Agreement, the other Loan Documents or any related agreement
or document or in connection herewith or therewith. No Lender or any of its
directors, officers, employees or agents shall have any responsibility to the
Borrower or any other Loan Party on account of the failure or delay in
performance or breach by any other Lender of such other Lender's obligations
under this Credit Agreement, the other Loan Documents, any Lender Hedging
Agreement or any related agreement or document or in connection herewith or
therewith.
(c) The Administrative Agent and each of the other Agents, in
each case, as agent for the Lenders hereunder and the other Secured Parties, and
each Issuing Bank shall be entitled to rely on, and shall not incur any
liability for relying on, any notice, request, certificate, consent, statements,
communication, instrument, document or other writing believed by it to be
genuine or correct and to have been signed or sent by a Person or Persons
believed by it to be the proper Person or Persons. The Administrative Agent,
each other Agent and each Issuing Bank shall also be entitled to rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. The
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Administrative Agent, each other Agent and each Issuing Bank may consult with
legal counsel (who may be counsel for the Borrower), independent public
accountants and other professional advisors and experts selected by it, and
shall be entitled to rely on advice of, and shall not be liable for any action
taken or not taken by it in accordance with the advice of, any such counsel,
accountants, advisors or experts.
Section 10.6. Reimbursement and Indemnification. Each of the Lenders
agrees (i) to reimburse the Administrative Agent for such Lender's pro rata
share (determined in accordance with such Lender's Percentage) of any expenses
and fees incurred for the benefit of the Lenders under the Loan Documents,
including, without limitation, counsel fees and compensation of agents,
employees, financial advisors and other professionals paid for services rendered
for the benefit of the Lenders, and any other expense incurred in connection
with the operation or administration of the Loan Documents or the enforcement
thereof not reimbursed by or on behalf of the Borrower and (ii) to indemnify and
hold harmless the Administrative Agent, and any of its respective directors,
officers, employees, or agents, on demand, in the amount of its pro rata share
(determined in accordance with such Lender's Percentage), 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, it or any
of them in any way relating to or arising out of any of the Loan Documents or
any related agreement or document, or any action taken or omitted by it or any
of them under any of the Loan Documents or any related agreement or document, to
the extent not reimbursed by or on behalf of the Borrower or any other Loan
Party (except such as shall result from the gross negligence or willful
misconduct of the Person to be indemnified or held harmless (as applicable), as
determined by a final and non-appealable order or judgment of a court of
competent jurisdiction) and (iii) to indemnify and hold harmless each Issuing
Bank and any of its directors, officers, employees, or agents, on demand, in the
amount of its pro rata share (determined in accordance with such Lender's
Percentage), 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 it or any of them in any way relating to or arising out of the
issuance of any Letters of Credit or the failure to issue Letters of Credit
(except such as shall result from the gross negligence or willful misconduct of
the Person to be indemnified or held harmless (as applicable), as determined by
a final and non-appealable order or judgment of a court of competent
jurisdiction). To the extent indemnification payments made by the Lenders
pursuant to this Section 10.6 are subsequently recovered by the Administrative
Agent or an Issuing Bank from a Loan Party, the Administrative Agent or such
Issuing Bank, as applicable, will promptly refund such previously paid indemnity
payments to the Lenders.
Section 10.7. Rights of the Agents and Issuing Banks. It is understood
and agreed that each of the Agents and each of the Issuing Banks shall have the
same duties, rights and powers as a Lender hereunder (including the right to
give instructions) as any of the other Lenders and may exercise such rights and
powers, as well as its rights and powers under other agreements and instruments
to which it is or may be party, and may engage generally in other transactions
with (including, without limitation, accepting deposits from and lending money
to) any Loan Party or Affiliate thereof, as though it were not an Agent or
Issuing Bank (as applicable) under this Credit Agreement and the other Loan
Documents.
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Section 10.8. Independent Investigation by Lenders. Each of the Lenders
acknowledges that it has decided to enter into this Credit Agreement and the
other Loan Documents (including, without limitation, Amendment No. 9), to
combine and continue the Existing Loans and to participate in the Letters of
Credit hereunder (as applicable) independently and without reliance upon any
Agent, any Issuing Bank or any other Lender, based on such documents and
information as it has deemed appropriate, and based its own analysis of the
transactions contemplated hereby and Amendment No. 9 and of the creditworthiness
of the Loan Parties; and each of the Lenders agrees that none of the Agents, the
Issuing Banks or other Lenders shall bear any responsibility therefor. Each
Lender also acknowledges that it will, independently and without reliance upon
any Agent, any Issuing Bank or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Credit
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
Section 10.9. Delegation to Sub-Agents. Each Agent may perform any and
all of its duties and exercise any of its rights and powers by or through any
one or more subagents appointed by such Agent. The Agents and any such
sub-agents may perform any and all of their duties and exercise rights and
powers through their respective Related Parties. The exculpatory provisions of
this Article 10 shall apply to any such sub-agent and to the Related Parties of
each Agent and any such sub-agent.
Section 10.10. Agreement of the Lenders. Upon any occasion requiring or
permitting an approval, consent, waiver, election or other action on the part of
the Required Lenders, action shall be taken by the Administrative Agent for and
on behalf of, or for the benefit of, all Lenders upon the direction of the
Required Lenders and any such action shall be binding on all Lenders. No
amendment, modification, consent or waiver shall be effective except in
accordance with the provisions of Section 11.11 hereof.
Section 10.11. Notice of Transfer. The Administrative Agent, each other
Agent and each Issuing Bank may deem and treat any Lender which is a party to
this Credit Agreement as the owner of such Lender's respective portions of the
Loans and participations in Letters of Credit for all purposes, unless and until
a written notice of the assignment or transfer thereof executed by any such
Lender shall have been received by the Administrative Agent and shall have
become effective in accordance with Section 11.3 hereof.
Section 10.12. Relations Among Lenders. Notwithstanding anything to the
contrary contained herein or in any other Loan Document, each Lender in its
capacity as a Lender hereunder agrees that it will not take any legal action, or
institute any actions or proceedings, against the Borrower or any other Loan
Party hereunder or under any other Loan Document, or with respect to any
Collateral or any Real Property Asset, it being understood and agreed that all
such actions are to be taken by the Administrative Agent on behalf of the
Lenders. Without limiting the generality of the foregoing, no Lender may
unilaterally terminate its Revolving Letter of Credit Commitment or accelerate,
or otherwise enforce or seek to enforce any rights or remedies with respect to,
any Loans or other Obligations owed to it, except pursuant to Section 10.3
hereof and statutory or common law rights of banker's liens and set-off with
respect to accounts maintained with such Lender.
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Section 10.13. Resignation of an Agent; Successor Administrative Agent.
Any Agent may resign at any time by giving written notice thereof to the
Lenders, the other Agents, the Issuing Banks and the Borrower, but such
resignation in the case of the Administrative Agent, shall not become effective
until thirty (30) days after the giving of such written notice. Upon any such
resignation, the retiring Administrative Agent shall promptly appoint a
successor administrative agent from among the Lenders which successor shall be
experienced and sophisticated in lending; provided that such replacement is
reasonably acceptable (as evidenced in writing) to the Required Lenders, the
Issuing Banks and the Borrower; provided, however, that such approval by the
Borrower shall not be required at any time when a Default or Event of Default is
continuing. If no successor administrative agent shall have been so appointed by
the retiring Administrative Agent and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation, the Borrower may appoint a successor administrative
agent; provided that any such successor must (a) be experienced and
sophisticated in lending, (b) be reasonably acceptable to the Required Lenders
and the Issuing Banks, (c) be either a Lender or a commercial bank organized
under the laws of the United States of America or of any State thereof and (d)
have a combined capital and surplus of at least $250,000,000. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
administrative agent, (a) such successor administrative agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent; (b) the retiring Administrative Agent
shall be discharged from its duties and obligations under this Credit Agreement,
the other Loan Documents and any other credit documentation; and (c) such
successor administrative agent shall execute such documents as may reasonably
requested by the retiring Administrative Agent, or required pursuant to the
terms of any Loan Documents, in order to assume or confirm such successor
administrative agent's rights, powers, privileges, duties and obligations under
any such Loan Documents. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Article 10 shall inure
to benefit of such retiring Administrative Agent, its sub-agents and its Related
Parties as to any actions taken or omitted to be taken by any of them while it
was Agent or acting on behalf of the Administrative Agent under this Credit
Agreement and the other Loan Documents.
Section 10.14. Lender Payments. (a) Except as otherwise provided
herein, all payments by any Lender hereunder shall be made to the Administrative
Agent at the office of Bank of America, N.A., Attention: Credit Services (wiring
information: Bank of America, N.A., Dallas, Texas, ABA No. ▇▇▇▇▇▇▇▇▇; Acct. No.
1292000883, Account Name: Corporate Credit Services; Ref: ▇▇▇▇▇▇▇▇
Communications LLC) not later than 1:00 p.m., Central time. All payments
received after such time shall be deemed received on the next succeeding
Business Day. All payments shall be made in immediately available funds in
lawful money of the United States of America.
(b) If the Administrative Agent, any Issuing Bank, any Lender
or any other Secured Party is required at any time to return to the Borrower, or
to a trustee, receiver, liquidator, custodian, or any official under any
proceeding under any Debtor Relief Law, any portion of a payment made by the
Borrower, each Lender or other Secured Party agrees that it shall, on demand of
the Administrative Agent, return its share of the amount to be returned which
was received by the applicable Lender or other Secured Party, plus interest
thereon from
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the date of such demand to the date such payment is made at a rate per annum
equal to the Federal Funds Rate.
Section 10.15. Syndication Agent and Co-Documentation Agents.
Notwithstanding anything in this Credit Agreement or any Loan Document to the
contrary, the Syndication Agent and each of the Co-Documentation Agents shall
have no duty, obligation or responsibility as such hereunder.
ARTICLE 11
MISCELLANEOUS
Section 11.1. Notices. (a) Except in the case of notices and other
communications that are expressly permitted to be given only by telephone, all
notices and other communications provided for herein shall be in writing and
shall be delivered by hand, overnight courier, certified or registered mail or
sent by facsimile addressed as follows:
(i) if to the Administrative Agent or Bank of America, N.A., to it as
follows:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, Managing Director
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a courtesy copy to:
▇▇▇▇▇▇▇▇ Chance US LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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(ii) if to Bank of America, N.A., as Issuing Bank, to it as follows:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) if to ▇▇ ▇▇▇▇▇▇ Chase Bank, as Issuing Bank, to it as follows:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank
10420 Highland Mn Dr-Bl 2
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) if to any Lender, to it at its address (or telecopier number) set forth
in its Administrative Questionnaire;
(v) if to Holdings, the Borrower or any other Loan Party, to it as follows:
▇▇▇▇▇▇▇▇ Communications, LLC
One Technology Center, 15th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
For other than administrative notices:
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or
For administrative notices:
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
In each case, with a copy to:
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and if the Escrow Release has occurred, then in each case, with a
courtesy copy to:
Leucadia National Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
119
Attention: ▇▇▇ ▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as such party may from time to time designate by giving
written notice to the other parties hereunder. Any failure of any Person giving
notice pursuant to this Section 11.1 to provide a courtesy copy to a party as
provided herein, shall not affect the validity of such notice. All notices and
other communications given to any party hereto in accordance with the provisions
of this Credit Agreement shall be deemed to have been given (x) on the fifth
Business Day after the date when sent, postage prepaid, return receipt
requested, if by certified or registered mail, (y) when delivered, if delivered
by hand or overnight courier service, or (z) when receipt is acknowledged, if by
facsimile, in each case addressed to such party as provided in this Section 11.1
or in accordance with the latest unrevoked written direction from such party.
(b) No notice to or demand on any of the Loan Parties on any
occasion shall entitle such Loan Party or any other Loan Party to any other or
further notice or demand in the same, similar or other circumstances, unless
otherwise expressly required under this Credit Agreement.
Section 11.2. Survival of Agreement, Representations and Warranties,
etc. All warranties, representations, agreements and covenants made by any of
the Loan Parties herein, in any other Loan Document or in any certificate or
other instrument delivered by it or on its behalf in connection with or pursuant
to this Credit Agreement or any other Loan Document shall be considered to have
been relied upon by the Administrative Agent, the other Agents, the Issuing
Banks and the Lenders and, except for any terminations, amendments,
modifications or waivers thereof in accordance with the terms hereof, shall
survive the execution and delivery of this Credit Agreement, the combination and
continuance of the Existing Loans and the issuance of the Letters of Credit
herein contemplated, and the execution and delivery of any Notes hereunder, in
each case, regardless of any investigation made by the Administrative Agent, any
of the other Agents, any Issuing Bank or any of the Lenders or on their behalf
and notwithstanding the Administrative Agent, any other Agent, any Issuing Bank
or any Lender may have had notice or knowledge of any Default or Event of
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect so long as any
Obligation is outstanding and unpaid, any Letter of Credit is outstanding and so
long as the Revolving Letter of Credit Commitments have not been terminated. All
statements in any such certificate or other instrument delivered in connection
with, or pursuant to this Credit Agreement or other Loan Document shall
constitute representations and warranties by the Loan Parties hereunder.
Notwithstanding the foregoing, any representation, warranty, agreement or
covenant with respect to any tax shall survive at least until thirty (30) days
after the expiration of the applicable statute of limitations with respect to
such tax.
Section 11.3. Successors and Assigns; Syndications; Loan Sales;
Participations. (a) Whenever in this Credit Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party (including, without limitation any affiliate of
any Issuing Bank that issues any Letter of Credit); provided, however, that
neither the Borrower or Holdings may assign or transfer any of its rights or
obligations hereunder or under any other Loan Document without the prior written
consent of the Administrative Agent, each Issuing Bank and all of the Lenders
(and any attempted assignment
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or transfer without such consent shall be null and void); provided, further,
however, that none of Old WCG or any of the Subsidiary Loan Parties may assign
or transfer any of its rights or obligations hereunder or under any other Loan
Document (except as otherwise expressly provided herein or therein) without the
prior written consent of the Administrative Agent, each Issuing Bank and all of
the Lenders unless such assignment or transfer is expressly permitted in the
applicable Loan Document (and any attempted assignment or transfer without such
consent shall be null and void). All covenants, promises and agreements by or on
behalf of any of the Loan Parties which are contained in this Credit Agreement
or any other Loan Document shall inure to the benefit of the successors and
assigns of the Administrative Agent, the Issuing Banks and the Lenders. Nothing
in this Credit Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any affiliate of any Issuing Bank that
issues any Letter of Credit) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuing Banks and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Credit Agreement or any other Loan Document.
(b) Each of the Lenders may (but, except to the extent
otherwise expressly provided in Section 11.3(c) below, only with the prior
written consent of the Administrative Agent and the Borrower and in the case of
an assignment of a Revolving Letter of Credit Commitment and any obligations
with respect to any L/C Exposure, the Issuing Banks, which consent in each case
shall not be unreasonably withheld and which consent by the Borrower shall not
be required if at the time of the applicable Assignment and Acceptance is
delivered to the Administrative Agent for its acceptance and recording, an Event
of Default has occurred and is then continuing) assign to one or more Eligible
Assignees all or a portion of its interests, rights and obligations under this
Credit Agreement (including, without limitation, all or a portion of any Loans
at the time owing to it and any Note held by it evidencing such Loans, and/or
all or a portion of its Revolving Letter of Credit Commitment, the same portion
of its obligations with regard to Letters of Credit and any Note held by it
evidencing such Revolving Letter of Credit Commitment); provided, however, that
(i) each assignment shall be of a constant, and not a varying, percentage of the
assigning Lender's interests, rights and obligations under this Credit
Agreement, (ii) each assignment shall (X) in the case of the Revolving Letter of
Credit Commitment, be in a minimum amount of $1,000,000 (or such lesser amount
(1) as shall equal the assigning Lender's entire Revolving Letter of Credit
Commitment or (2) as agreed to by the Administrative Agent and the Borrower), or
(Y) in the case of a Loan, be in a minimum Loan amount of $1,000,000 (or such
lesser amount (1) as shall equal the assigning Lender's entire Loan or (2) as
agreed to by the Administrative Agent and the Borrower) and (iii) after giving
effect to such assignment, the assigning Lender's remaining Revolving Letter of
Credit Commitment and/or outstanding Loans (as appropriate) shall each either be
zero or an amount equal to $1,000,000 or more, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register (as defined below), an Assignment and
Acceptance substantially in the form of Exhibit C hereto, together with the
assigning Lender's original Note (if any) evidencing the Loans or Revolving
Letter of Credit Commitment (as applicable) being assigned and a processing and
recordation fee of $3,500 to be paid to the Administrative Agent by the
assigning Lender or the assignee (provided, the amount of such fee shall be
$1,500 in the case of an assignment by a Lender to an Affiliate of such Lender
or a Related Fund hereunder), (v) if the assignee is not a Lender, it shall
deliver to the Administrative Agent, an Administrative Questionnaire, and (vi)
if the assignee is not
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incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Administrative Agent the forms
prescribed by the Internal Revenue Service of the United States certifying as to
the assignee's exemption from United States withholding taxes with respect to
all payments to be made to the assignee under the Credit Agreement or such other
documents as are necessary to indicate that all such payments are subject to
such tax at a rate reduced by any applicable tax treaty. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall not (unless
otherwise agreed to by the Administrative Agent) be earlier than five (5)
Business Days after the date of acceptance and recording by the Administrative
Agent, (x) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and under the other Loan Documents and shall be bound by the
provisions hereof and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Credit Agreement except that,
notwithstanding such assignment, any rights and remedies available to the
Borrower for any breaches by such assigning Lender of its obligations hereunder
while a Lender shall be preserved after such assignment, and such Lender shall
not be relieved of any liability to the Borrower due to any such breach. In the
case of an Assignment and Acceptance covering all of the remaining portion of
the assigning Lender's rights and obligations under this Credit Agreement, such
assigning Lender shall cease to be a party hereto (but shall be entitled to the
benefits of Sections 2.4(h), 2.12, 2.13, 2.15, 11.4 and 11.5 hereof). It shall
not be necessary for any Lender to sell the same percentage of its Revolving
Letter of Credit Commitment and its Loans (as the case may be) (although each
such percentage of its Revolving Letter of Credit Commitment (and its L/C
Exposure) and its Loans must be a constant, not varying percentage). Each Lender
that is an investment fund hereby agrees to notify the Administrative Agent of
any change of the identity of the investment manager for such fund.
(c) Each Lender, in accordance with Section 11.3(b) above
(other than the provisions of the first parenthetical phrase appearing therein),
may at any time make an assignment of its interests, rights and obligations
under this Credit Agreement, (i) solely with respect to an assignment of Loans
only, without the consent of the Administrative Agent, any Issuing Bank or the
Borrower, to any other Lender, to any Affiliate of such assigning Lender or to a
Related Fund of such assigning Lender or (ii) solely with respect to an
assignment of the Revolving Letter of Credit Commitment only, without the prior
written consent of the Administrative Agent, the Borrower, and the Issuing Bank,
to any other Lender which at the time of the assignment has a Revolving Letter
of Credit Commitment hereunder.
(d) By executing and delivering an Assignment and Acceptance,
the assigning Lender thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby and that such interest is free and clear of any
adverse claim, the 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 this Credit Agreement or any other
Loan Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any of the other Loan Documents or
any other instrument or document furnished pursuant hereto or thereto; (ii) such
assignor Lender makes no representation or warranty and assumes no
responsibility
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with respect to the financial condition of any of the Loan Parties or the
performance or observance by any of the Loan Parties of any of their respective
obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Credit Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 5.1(a) and 5.1(b) (or if none of such
financial statements shall have then been delivered, then copies of the
financial statements referred to in Section 3.6(a) hereof) 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 agrees that it will, independently and without reliance upon the
assigning Lender, the Administrative Agent, the other Agents, the Issuing Banks,
any other Lender or any other Secured Party 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 this Credit Agreement, any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto; (v) such assignee appoints and authorizes the
Administrative Agent and each Issuing Bank to take such action as agent(s) on
its behalf and to exercise such powers under this Credit Agreement and the other
Loan Documents as are delegated to the Administrative Agent or such Issuing Bank
(as applicable) by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vi) such assignee agrees that it will be bound by the
provisions of this Credit Agreement and the other Loan Documents and will
perform in accordance with their terms all of the obligations which by the terms
of this Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender.
(e) The Administrative Agent, acting on behalf of the
Borrower, shall maintain at one of its offices in any State of the United
States, a copy of each Assignment and Acceptance and a register for the
recordation of the names and addresses of the Lenders, the Revolving Letter of
Credit Commitment of each Lender, the principal amount of the Loan owing to each
Lender and any payments with respect to Letters of Credit which are owing to
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive, in the absence of manifest error, and the Loan Parties, the
Administrative Agent, the other Agents, the Issuing Banks and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of the Loan Documents. The Register shall be available for
inspection by any Loan Party, any Issuing Bank or any Lender at any reasonable
time and from time to time upon reasonable prior notice. Any assignment of any
Loan or Revolving Letter of Credit Commitment whether or not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. Any assignment or transfer of all or part of a Loan or
Revolving Letter of Credit Commitment evidenced by a Note shall be registered on
the Register only upon surrender of the Note evidencing such Loan, accompanied
by a duly executed Assignment and Acceptance, and thereupon one or more new
Notes shall be issued to the assignee and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "cancelled".
(f) Subject to the foregoing, upon its receipt of an
Assignment and Acceptance executed by an assigning Lender and an assignee
together with the assigning Lender's original Note (if any) evidencing the Loan
or Revolving Letter of Credit Commitment (as applicable) being assigned thereby,
the processing and recordation fee, the assignee's completed Administrative
Questionnaire (if applicable) and evidence of the Administrative Agent's, the
Issuing Banks' and the Borrower's written consent to such assignment (as
required),
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the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is substantially in the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt written notice thereof to the Borrower. Within
five (5) Business Days after receipt of the notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent, in exchange for
any surrendered Note, a new Note to the order of such assignee in an amount
equal to the Revolving Letter of Credit Commitment or the principal amount of
the Loan (as appropriate) assumed by the assignee Lender pursuant to such
Assignment and Acceptance and if the assigning Lender has retained a Revolving
Letter of Credit Commitment or any portion of the Loans (as appropriate)
hereunder, a new Note to the order of the assigning Lender in an amount equal to
the Revolving Letter of Credit Commitment or the principal amount of the Loan
(as appropriate) retained by it hereunder. Such new Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Note (or if applicable, the outstanding principal amount of the
applicable Loan owed to the assigning Lender immediately preceding the relevant
assignment), shall be dated the date of the surrendered Note and shall otherwise
be in substantially the form of the surrendered Note.
(g) Each of the Lenders may, without the consent of any of the
Loan Parties, the Administrative Agent, the Issuing Bank or the other Lenders,
sell participations to one or more banks, other financial institutions,
investing companies or funds in all or a portion of its rights and obligations
under this Credit Agreement (including, without limitation, all or a portion of
the Loan at the time owing to it and any Note held by it evidencing such Loan,
or all or a portion of its Revolving Letter of Credit Commitment, the same
portion of its participation in Letters of Credit and any Note held by it
evidencing such Revolving Letter of Credit Commitment); provided, however, that
(i) any such Lender's obligations under this Credit Agreement shall remain
unchanged and it shall remain solely responsible to the other parties hereto for
the performance of such obligations, (ii) any agreement or instrument pursuant
to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents and
that such participant shall not be granted any voting rights or any right to
control the vote of such Lender under this Credit Agreement by the Lender
selling a participation hereunder, except that such participant may be granted
voting rights (or a right to control the vote of such Lender under this Credit
Agreement) with respect to (A) proposed decreases to interest rates or fees, (B)
changes to the amount of the Revolving Letter of Credit Commitments (except for
a ratable decrease in the Total Revolving Letter of Credit Commitment of all
Lenders holding Revolving Letter of Credit Commitments), (C) any extensions of
the final maturity of any Loan or any reduction of fees (in each case, as
applicable to such participant), (D) releases of all or substantially all the
Collateral and the Mortgaged Real Property Assets and (E) any release of
Holdings as a Guarantor hereunder, (iii) the participating banks or other
entities shall be entitled to the cost protection provisions contained in
Sections 2.4(h), 2.12, 2.13 and 2.14 hereof, but a participant shall not be
entitled to receive pursuant to such provisions an amount larger than its share
of the amount to which the Lender granting such participation would have been
entitled to receive, unless the sale of the participation was made with the
Borrower's prior written consent, (iv) the Loan Parties, the Administrative
Agent, the other Agents, the Issuing Bank and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
and its participants' rights and obligations under this Credit Agreement and (v)
such Lender, acting for this purpose as an agent for the Borrower, shall
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maintain at one of its offices a copy of the agreement pursuant to which such
participation is granted (the "Participation Agreement") and each agreement
pursuant to which any interest in such participation is assigned by the
participant, and a register for the recordation of the names and addresses of
each participant (and any such assignee of such participation), its respective
interests in the Revolving Letter of Credit Commitments and the principal
amounts of the Loans and LC Disbursements owing to the Lender (the "Participant
Register"). Each such Participation Agreement shall provide that such
participation (and any assignment thereof) shall be effective upon recordation
in such Participation Register.
(h) A Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.3, disclose to the assignee or participant or proposed assignee or
participant (provided such assignee or participant or proposed assignee or
participant is not a direct competitor of any material business of the Loan
Parties) any information relating to any of the Loan Parties or their
Subsidiaries furnished to the Administrative Agent, any other Agent, the Issuing
Bank or such Lender by or on behalf of the Borrower or any other Loan Party;
provided, that prior to any such disclosure, each such assignee or participant
or proposed assignee or participant shall agree in writing to be bound by the
provisions of Section 11.17 hereof.
(i) Any assignment pursuant to paragraph (b) or (c) of this
Section 11.3 shall constitute an amendment of the Schedule of Outstanding Term
Loans and Revolving Letter of Credit Commitments as of the effective date of
such assignment.
(j) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Credit Agreement to
secure obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section 11.3 shall not apply to
any such pledge or assignment of a security interest; provided, however, that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
Section 11.4. Expenses; Documentary Taxes. Whether or not the
transactions hereby contemplated shall be consummated, the Borrower agrees to
pay (a) all reasonable out-of-pocket expenses incurred by the Administrative
Agent, the other Agents, the Issuing Bank and/or the other members of the
steering committee in connection with, or arising out of, the performance of due
diligence, the negotiation, preparation, execution, delivery, waiver or
modification and administration of this Credit Agreement and any other
documentation contemplated hereby, the Loans and the issuance of the Letters of
Credit, the Collateral, any Real Property Asset or any Loan Document, including
but not limited to, the reasonable out-of-pocket, costs and internally allocated
charges of legal counsel or audit or field examinations of the Administrative
Agent, the other Agents or the other members of the steering committee in
connection with the preparation, negotiation and administration of this Credit
Agreement, the verification of financial data or the transactions contemplated
hereby, and the reasonable fees and disbursements of ▇▇▇▇▇▇▇▇ Chance US LLP,
counsel for the Administrative Agent, Shearman & Sterling, counsel to the
Co-Documentation Agents, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Syndication
Agent, and ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, counsel to Credit Lyonnais New York Branch,
and FTI, financial advisors to ▇▇▇▇▇▇▇▇ Chance US LLP, (b) all reasonable
out-of-pocket expenses incurred by any
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Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder, and (c) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, any of
the other Agents, any Issuing Bank or any Lender in connection with the
enforcement or protection (as distinguished from administration) of its rights
and remedies (or the rights and remedies of the Agents, the Issuing Bank, the
Lenders or the other Secured Parties) in connection with this Credit Agreement,
the other Loan Documents, the Letters of Credit, the Loans or any Notes
hereunder, or as a result of any transaction, action or non-action arising from
any of the foregoing, incurred during any workout, restructuring or negotiations
in respect of the Loans or Letters of Credit, including but not limited to, the
fees and disbursements of any counsel for any of the Agents, any Issuing Bank or
any of the Lenders. Such payments shall be made on demand. The Borrower agrees
that it shall indemnify the Administrative Agent, the other Agents, the Issuing
Banks and the Lenders from and hold them harmless against any documentary,
transfer, stamp, excise, property or similar taxes, assessments or charges made
by any Governmental Authority by reason of any payment made by or on behalf of
the Borrower or other Loan Party under the Credit Agreement or other Loan
Documents or the execution, filing, recording, performance, release, discharge,
amendment, enforcement and/or delivery of this Credit Agreement or any Notes
hereunder or the issuance of Letters of Credit or any other Loan Document. The
obligations of the Borrower under this Section shall survive the Bank Credit
Termination Date, the termination of this Credit Agreement, the payment of the
Loans, the expiration or termination of the Letters of Credit and/or the
termination of any Lender Hedging Agreement.
Section 11.5. Indemnity. The Borrower agrees to indemnify and hold
harmless the Administrative Agent, the other Agents, the Issuing Banks and each
Lender, and their respective Related Parties (each of the foregoing, an
"Indemnified Party"), to the full extent permitted by Applicable Law, from and
against any and all claims, demands, losses, judgments, damages, expenses and
liabilities (including, without limitation, liabilities for penalties) incurred
by or asserted against any of them as a result of, or arising out of, or in any
way related to, or by reason of, any actual or prospective investigation, claim,
litigation or other proceeding (whether based on contract, tort or other theory
and regardless of whether or not any Indemnified Party is a party thereto)
related to the entering into and/or performance of any Loan Document or any
other agreement or instrument contemplated thereby (including, without
limitation, any refusal by any Issuing Bank to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit) or the use of the
proceeds of any Loans hereunder or the issuance of any Letter of Credit or the
consummation of any other transaction contemplated in any Loan Document,
including, without limitation, the reasonable fees and disbursements of counsel
incurred in connection with any such investigation, claim, litigation or other
proceeding (but excluding any such claims, demands, losses, judgments, damages,
expenses and liabilities of an Indemnified Party to the extent incurred by
reason of the gross negligence or willful misconduct of such Indemnified Party
as determined by a final, non-appealable order or judgment of a court of
competent jurisdiction). If any proceeding, including any governmental
investigation, shall be instituted involving any Indemnified Party, in respect
of which indemnity may be sought against the Borrower, such Indemnified Party
shall promptly notify the Borrower in writing, and the Borrower shall assume the
defense thereof on behalf of such Indemnified Party including the employment of
counsel (reasonably satisfactory to such Indemnified Party) and payment of all
reasonable fees and expenses. Any Indemnified Party shall have the right to
employ separate
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counsel in any such proceeding and participate in the defense thereof, but the
fees and expenses of such separate counsel shall be at the expense of such
Indemnified Party unless (i) the employment of such separate counsel has been
specifically authorized by the Borrower or (ii) the named parties to any such
action (including any impleaded parties) include such Indemnified Party and the
Borrower and such Indemnified Party shall have been advised by counsel that
there may be one or more legal defenses available to such Indemnified Party
which are different from or in addition to those available to the Borrower (in
which case the Borrower shall not have the right to assume the defense of such
action on behalf of such Indemnified Party). At any time after the Borrower has
assumed the defense of any proceeding involving any Indemnified Party in respect
of which indemnity has been sought against the Borrower, such Indemnified Party
may elect, by written notice to the Borrower, to withdraw its request for
indemnity and thereafter the defense of such proceeding shall be maintained by
counsel of the Indemnified Party's choosing and at the Indemnified Party's
expense. The foregoing indemnity agreement includes any reasonable costs
incurred by an Indemnified Party in connection with any action or proceeding
which may be instituted in respect of the foregoing by the Administrative Agent,
one of the other Agents or the Issuing Banks or by any other Person either
against the Administrative Agent, one of the other Agents, the Issuing Banks or
the Lenders or in connection with which any officer or employee of the
Administrative Agent, one of the other Agents, the Issuing Banks or the Lenders
is called as a witness or deponent, including, but not limited to, the
reasonable fees and disbursements of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel to the
Administrative Agent, Shearman & Sterling, counsel to the Co-Documentation
Agents, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to the Syndication Agent, and ▇▇▇▇▇▇
and ▇▇▇▇▇, LLP, counsel to Credit Lyonnais New York Branch, and any reasonable
out-of-pocket costs incurred by the Administrative Agent, any other Agent, any
Issuing Bank or any Lender in appearing as a witness or in otherwise complying
with legal process served upon them. The obligations of the Borrower under this
Section 11.5 shall survive the Bank Credit Termination Date, the termination of
this Credit Agreement, the payment of the Loans, the expiration or termination
of the Letters of Credit and/or the termination of any Lender Hedging Agreement
and shall inure to the benefit of any Person who was a Lender notwithstanding
such Person's assignment of all its Loans and its Revolving Letter of Credit
Commitment hereunder. Any amount due under this Section 11.5 shall be payable by
the Borrower promptly after written demand therefor.
If a Loan Party shall fail to do any act or thing which it has
covenanted to do hereunder or under a Loan Document, or any representation or
warranty of a Loan Party shall be breached, the Administrative Agent may (but
shall not be obligated to) do the same or cause it to be done or remedy any such
breach, and there shall be added to the Obligations hereunder the cost or
expense incurred by the Administrative Agent in so doing, and any and all
amounts expended by the Administrative Agent in taking any such action shall be
repayable to it upon its demand therefor and shall bear interest at the rate per
annum set forth in Section 2.10(a)(iii) from time to time in effect from the
date advanced to the date of repayment.
Section 11.6. CHOICE OF LAW. THIS CREDIT AGREEMENT, THE OTHER LOAN
DOCUMENTS AND ANY NOTE HEREUNDER SHALL IN ALL RESPECTS BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES AND BY FEDERAL LAW TO THE EXTENT
APPLICABLE; PROVIDED, HOWEVER, THAT WITH RESPECT TO ANY MORTGAGE FILED IN A
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JURISDICTION OUTSIDE THE STATE OF NEW YORK, THE LAWS OF SUCH JURISDICTION WHERE
SUCH MORTGAGE WAS FILED SHALL APPLY.
Section 11.7. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES, AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR
OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE,
CLAIM, DEMAND, ACTION, OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON (WHETHER
DIRECTLY OR INDIRECTLY) THIS CREDIT AGREEMENT, THE SUBJECT MATTER HEREOF, ANY
OTHER LOAN DOCUMENT OR THE SUBJECT MATTER THEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO
THAT THE PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH
SUCH OTHER PARTIES HAVE RELIED, ARE RELYING AND WILL RELY IN ENTERING INTO THIS
CREDIT AGREEMENT AND ANY OTHER LOAN DOCUMENT. ANY PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION 11.7 WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF ANY OTHER PARTY TO THE WAIVER OF ITS RIGHTS TO TRIAL BY JURY.
Section 11.8. WAIVER WITH RESPECT TO DAMAGES. EACH LOAN PARTY
ACKNOWLEDGES THAT NONE OF THE ADMINISTRATIVE AGENT, THE OTHER AGENTS, THE
ISSUING BANKS OR THE LENDERS HAS ANY FIDUCIARY RELATIONSHIP WITH, OR FIDUCIARY
DUTY TO, ANY LOAN PARTY ARISING OUT OF OR IN CONNECTION WITH THIS CREDIT
AGREEMENT OR ANY OTHER LOAN DOCUMENT AND THE RELATIONSHIP BETWEEN THE
ADMINISTRATIVE AGENT, THE OTHER AGENTS, THE ISSUING BANKS AND THE LENDERS, ON
THE ONE HAND, AND THE LOAN PARTIES, ON THE OTHER HAND, IN CONNECTION THEREWITH
IS SOLELY THAT OF CREDITOR AND DEBTOR. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, NO LOAN PARTY SHALL ASSERT, AND EACH LOAN PARTY HEREBY WAIVES, ANY CLAIMS
AGAINST THE ADMINISTRATIVE AGENT, ANY OTHER AGENT, ANY ISSUING BANK, ANY LENDER
OR ANY OTHER INDEMNIFIED PARTY ON ANY THEORY OF LIABILITY, FOR SPECIAL,
INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL
DAMAGES) ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS CREDIT
AGREEMENT, ANY LOAN DOCUMENT, ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY OR
THEREBY, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, ANY LOAN OR LETTER OF
CREDIT OR THE USE OF THE PROCEEDS THEREOF.
Section 11.9. No Waiver. No failure on the part of the Administrative
Agent, any other Agent, any Issuing Bank or any Lender to exercise, and no delay
in exercising, any right, power or remedy hereunder, under any Note hereunder,
with regard to any Letter of Credit, or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial
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exercise of any such right, power or remedy or any abandonment or discontinuance
of steps to enforce any such right, power or remedy, preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
All rights, powers and remedies hereunder and under the Loan Documents are
cumulative and are not exclusive of any other rights, powers and remedies
provided by Applicable Law or otherwise. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by Section 11.11 hereof,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the issuance of a Letter of Credit or the continuation or conversion
of a Loan hereunder shall not be construed as a waiver of any Default or Event
of Default, regardless of whether the Administrative Agent, any other Agent, any
Lender or any Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time.
Section 11.10. Extension of Payment Date. Except as otherwise
specifically provided in Article 2 hereof, should any payment or prepayment of
principal of or interest on any of the Loans or any other amount due hereunder
or under any other Loan Document, become due and payable on a day other than a
Business Day, the due date of such payment, prepayment or other amount shall be
extended to the next succeeding Business Day and, in the case of a payment or
prepayment of principal, interest shall be payable thereon at the rate herein
specified during such extension.
Section 11.11. Amendments, etc. (a) Neither this Credit Agreement or
any other Loan Document or any provision hereof or thereof may be waived,
amended or modified except, in the case of this Credit Agreement, pursuant to an
agreement or agreements in writing entered into by Holdings, the Borrower, the
other Loan Parties and the Required Lenders or, in the case of any other Loan
Document, pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders; provided, that
no such agreement shall (i) increase the Revolving Letter of Credit Commitment
of any Revolving Letter of Credit Lender without the written consent of such
Revolving Letter of Credit Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Revolving Letter of Credit Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.17(b) or 10.3(b) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the definition of "Required Lenders" or any
other provision of any Loan Document specifying the number or percentage of
Lenders (or Revolving Letter of Credit Lenders or Term Lenders, as applicable)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Revolving Letter of Credit Lender or each Term Lender, as
the case may be), (vi) release Holdings or substantially all of the Subsidiary
Loan Parties from their respective Guarantees hereunder (except as expressly
provided herein), or limit its liability in respect of such Guarantee, without
the written consent of each Lender, (vii) change any provision of any Loan
129
Document in a manner that by its terms adversely affects the rights in respect
of payments due to, or requirements to make loans by, Term Lenders differently
than Revolving Letter of Credit Lenders, without the written consent of Term
Lenders holding a majority in interest of the outstanding Loans, or (viii)
change any provision of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to, requirements to make
Loans by or requirements for Letters of Credit (in which participations will be
purchased in accordance with this Credit Agreement by,) Revolving Letter of
Credit Lenders differently than Term Lenders, without the written consent of
Revolving Letter of Credit Lenders holding a majority in interest of the
outstanding L/C Exposure and unused Revolving Letter of Credit Commitments;
provided, further, that (A) no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent or any Issuing Bank
without the prior written consent of the Administrative Agent or the affected
Issuing Bank, as the case may be, and (B) any waiver, amendment or modification
of this Credit Agreement that by its terms affects the rights or duties under
this Credit Agreement of the Term Lenders (but not Revolving Letter of Credit
Lenders) or Revolving Letter of Credit Lenders (but not Term Lenders) may be
effected by an agreement or agreements in writing entered into by Holdings, the
Borrower, the other Loan Parties and the requisite percentage in interest of the
Term Lenders or Revolving Letter of Credit Lenders (as applicable) that
constitute the affected class.
(b) Each holder of a Loan, a Note or a Revolving Letter of Credit
Commitment shall be bound by any amendment, modification, waiver or consent
authorized as provided herein (whether or not any applicable Note shall have
been marked to indicate such amendment, modification, waiver or consent); and
any consent by any holder of a Loan, a Revolving Letter of Credit Commitment or
a Note shall bind any Person subsequently acquiring such Loan, Revolving Letter
of Credit Commitment or Note (whether or not any applicable Note is so marked).
(c) Notwithstanding the foregoing provisions of Section 11.11(a) above,
the Security Agreement may only be amended in accordance with the terms of
Section 11.11(a) above and Section 21 of the Security Agreement.
Section 11.12. Severability. Any provision of this Credit Agreement or
of any Note hereunder which is invalid, illegal or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without invalidating the
remaining provisions hereof, and any such invalidity, illegality or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.13. SERVICE OF PROCESS. EACH LOAN PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS (FOR ITSELF AND ITS PROPERTY) TO THE JURISDICTION OF
THE STATE COURTS OF THE STATE OF NEW YORK IN NEW YORK COUNTY AND TO THE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK SITTING IN NEW YORK COUNTY (AND TO ANY APPELLATE COURT FROM ANY
THEREOF), FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT
OF, OR BASED UPON, THIS CREDIT AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE
LETTERS OF CREDIT) THE SUBJECT
130
MATTER HEREOF, ANY OTHER LOAN DOCUMENT AND THE SUBJECT MATTER THEREOF, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE LOAN PARTIES HEREBY
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH LOAN PARTY
TO THE EXTENT PERMITTED BY APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES NOT TO
ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION
OR OTHER PROCEEDING BROUGHT IN THE ABOVE-NAMED COURTS, ANY CLAIM THAT IT IS NOT
SUBJECT PERSONALLY TO THE JURISDICTION OF SUCH COURTS, THAT ITS PROPERTY IS
EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS CREDIT AGREEMENT, THE SUBJECT
MATTER HEREOF, ANY OTHER LOAN DOCUMENT OR THE SUBJECT MATTER THEREOF OR ANY
JUDGMENT (AS APPLICABLE) MAY NOT BE ENFORCED IN OR BY SUCH COURT AND (B) HEREBY
WAIVES THE RIGHT TO ASSERT IN ANY SUCH ACTION, SUIT OR PROCEEDING ANY OFFSETS OR
COUNTERCLAIMS EXCEPT COUNTERCLAIMS THAT ARE COMPULSORY OR OTHERWISE ARISE FROM
THE SAME SUBJECT MATTER. EACH PARTY HERETO AGREES THAT ITS SUBMISSION TO
JURISDICTION AND CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS
BENEFIT OF EACH OF THE OTHER PARTIES HERETO. FINAL JUDGMENT AGAINST ANY LOAN
PARTY IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE, AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION (X) BY SUIT, ACTION OR PROCEEDING ON THE
JUDGMENT, A CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE
FACT AND OF THE AMOUNT OF INDEBTEDNESS OR LIABILITY OF THE LOAN PARTY THEREIN
DESCRIBED OR (Y) IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH
OTHER JURISDICTION; PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE AGENT MAY AT ITS
OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS AGAINST A LOAN PARTY
OR ANY OF ITS ASSETS IN ANY ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR OF
ANY COUNTRY OR PLACE WHERE SUCH LOAN PARTY OR SUCH ASSETS MAY BE FOUND. EACH
PARTY HERETO HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT THE ADDRESS TO
WHICH NOTICES ARE TO BE GIVEN TO IT PURSUANT TO SECTION 11.1 HEREOF.
Section 11.14. Headings. Article and Section headings used herein and
the Table of Contents are for convenience only and are not to affect the
construction of, or be taken into consideration in interpreting, this Credit
Agreement.
Section 11.15. Execution in Counterparts. This Credit Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same
instrument. Signature pages may be detached from counterpart documents and
reassembled to form duplicate executed originals. Delivery of an
131
executed signature page to this Credit Agreement by facsimile shall be as
effective as delivery of a manually executed counterpart of this Credit
Agreement.
Section 11.16. Subordination of Intercompany Indebtedness, Receivables
and Advances. (a) Each Loan Party hereby agrees that any intercompany
Indebtedness or other intercompany receivables or intercompany advances directly
or indirectly made by or owed to such Loan Party by any other Loan Party, of
whatever nature at any time outstanding shall be completely subordinate in right
of payment to the prior indefeasible payment in full in cash of the Obligations,
and that no payment on any such Indebtedness, receivable or advance shall be
made until after the Bank Credit Termination Date (i) except intercompany
receivables, intercompany advances and intercompany Indebtedness permitted
pursuant to the terms hereof may be paid or repaid, in each case so long as no
Default or Event of Default, shall have occurred and be continuing and (ii)
except as specifically consented to by the Administrative Agent and the Required
Lenders in writing. Each Loan Party hereby agrees that it will not become
obligated or otherwise liable for any intercompany Indebtedness, or other
intercompany receivable or intercompany advance that is owed to any Subsidiary
of the Borrower or Holdings that is not a Loan Party, unless such Subsidiary
agrees that such Indebtedness, receivable or advance (as applicable) is
subordinated to the Obligations to the extent set forth above in the immediately
preceding sentence and agrees to be bound by Section 11.16(b) as if it were a
Loan Party that received a payment on such Indebtedness, receivable or advance.
(b) In the event that any payment on any such Indebtedness
receivable or advance shall be received by a Loan Party other than as permitted
by Section 11.16(a) before the Bank Credit Termination Date, such Loan Party
shall receive such payments and hold the same in trust for, segregate the same
from its own assets and shall immediately pay over to, the Administrative Agent
on behalf of the Secured Parties all such sums to the extent necessary so that
the Secured Parties shall have been paid in full, in cash, all Obligations then
owed.
Section 11.17. Confidentiality. Each of the Agents, the Issuing Banks
and the Lenders understands that some of the information furnished to it
pursuant to this Credit Agreement and the other Loan Documents may be received
by it prior to the time that such information shall have been made public, and
each of the Agents, the Issuing Banks and the Lenders hereby agrees that it will
keep all the Information (as defined below) received by it confidential except
that a Lender shall be permitted to disclose Information (i) only to such of its
officers, directors, employees, agents, representatives, auditors, consultants,
advisors, trustees, investments advisors, lawyers and affiliates (other than
affiliates that are direct competitors of any material business of the Loan
Parties) as need to know such information in connection with this Credit
Agreement or any other Loan Document and who will be advised of the confidential
nature of such Information; (ii) to any other party to this Credit Agreement;
(iii) to a proposed assignee or participant in accordance with Section 11.3(h)
hereof; (iv) to the extent required by Applicable Law and regulations or by any
subpoena or other legal process; (v) to the extent requested by any bank
regulatory authority or other regulatory authority; (vi) to the extent such
information (A) becomes publicly available other than as a result of a breach of
this Credit Agreement or (B) becomes available to such Lender on a
nonconfidential basis from a source other than the Borrower or any of its
Affiliates; (vii) to the extent the Borrower shall have consented to such
disclosure; or (viii) in connection with the servicing of the Loans hereunder,
in protecting, exercising or enforcing any rights and/or remedies in connection
with any Loan Document or in
132
any proceeding in connection with any Loan Document or any of the transactions
contemplated thereby. For the purposes of this Section, "Information" means all
information received from Holdings, the Borrower, any Loan Party or their
respective officers, directors, employees, agents, representatives, auditors,
consultants, advisors, trustees, investment advisors, lawyers and affiliates
(collectively, "Loan Party Agents") relating to Holdings, the Borrower, any Loan
Party, any Subsidiary of a Loan Party or any of their respective businesses,
other than any such information that is available to the Administrative Agent,
any other Agent, any Issuing Bank or any Lender on a nonconfidential basis prior
to disclosure by Holdings, the Borrower, any Loan Party, any Subsidiary of a
Loan Party or Loan Party Agent; provided that, in the case of information
received from Holdings, the Borrower, any Loan Party or Loan Party Agent after
the date hereof, such information is clearly identified at the time of delivery
as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Section 11.18. Entire Agreement. Each of this Credit Agreement
(including the Exhibits and Schedules hereto), Amendment No. 9, the
Administration Fee Letter, the Security Agreement, and any Loan Document
relating to the grant of a Lien to the Administrative Agent (for the benefit of
the Secured Parties), represents the entire agreement of the parties with regard
to the subject matter hereof and thereof (as applicable).
Section 11.19. Enforcement of Rights; No Obligation to ▇▇▇▇▇▇▇▇ Assets.
In enforcing any rights under this Credit Agreement or any other Loan Document,
neither the Administrative Agent nor any of the other Secured Parties shall be
required to resort to any particular security, right or remedy through
foreclosure or otherwise, or to proceed in any particular order of priority, or
to otherwise act or refrain from acting; and, to the extent permitted by
Applicable Law, each Loan Party hereby waives and releases any right to a
marshaling of assets or a sale in inverse order of alienation.
Section 11.20. Reproduction of Documents. The Credit Agreement, all
documents constituting Schedules or Exhibits hereto, and all documents relating
hereto received by a party hereto, including, without limitation: (a) consents,
waivers, amendments and modifications that may hereafter be executed; (b) the
Loan Documents; and (c) financial statements, certificates, and other
information previously or hereafter furnished to any of the Agents, any Issuing
Bank or any Lender may be reproduced by the party receiving the same by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. Each of the parties hereto agrees and stipulates that, to
the extent permitted by Applicable Law, any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made by such party in the regular course of business) and that,
to the extent permitted by Applicable Law, any enlargement, facsimile, or
further reproduction of such reproduction shall likewise be admissible in
evidence.
Section 11.21. Acknowledgment by the Lenders with Regard to Hedging
Agreements. Each Lender hereby acknowledges and agrees that in order for the
obligations under any Hedging Agreement entered into by and between such Lender
(or an affiliate of such Lender)
133
and the Borrower or other Subsidiary Loan Party to constitute an "Obligation"
hereunder, such Hedging Agreement must be permitted to be entered into by the
Borrower or such Subsidiary Loan Party under Section 6.1 hereof and written
notice thereof must be given to the Administrative Agent as provided in the
definition of "Obligations" set forth in Article 1 of this Credit Agreement. In
addition, each Lender agrees that by executing this Credit Agreement, it shall
be bound by the terms hereof and that any of its affiliates that may become
Hedge Counterparties after the Amendment No. 9 Closing Date, shall also be bound
hereby to the extent applicable to such party as a Secured Party hereunder.
Section 11.22. Change in GAAP. In the event of any change in generally
accepted accounting principles required by the promulgation of any rule,
regulation, opinion or other pronouncement of the Financial Accounting Standards
Board or if applicable, the Securities and Exchange Commission (or any successor
to either of them), and such change affects in the method of calculating the
financial covenants or any of the defined terms used therein, then the Borrower
and the Lenders agree to negotiate in good faith to amend the affected
provisions of this Credit Agreement as necessary so that the covenant levels
and/or the criteria for evaluating the consolidated financial condition of
Holdings, the Borrower and the Subsidiary Loan Parties as set forth in the
financial covenants shall be the same as if such change in generally accepted
accounting principles had not occurred.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
134
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed as of the day and the year first above written.
BORROWER:
▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Group Executive,
Corporate Development and Finance
OLD WCG:
▇▇▇▇▇▇▇▇ COMMUNICATIONS GROUP, INC.
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Group Executive,
Corporate Development and Finance
HOLDINGS:
WILTEL COMMUNICATIONS GROUP, INC.
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Group Executive,
Corporate Development and Finance
SUBSIDIARY LOAN PARTIES:
CG AUSTRIA, INC. (formerly known as ▇▇▇▇▇▇▇▇
GLOBAL COMMUNICATIONS HOLDINGS, INC.)
CRITICAL CONNECTIONS, INC.
WCS COMMUNICATIONS SYSTEMS, INC.
▇▇▇▇▇▇▇▇ COMMUNICATIONS EMERGING MARKETS, LLC
▇▇▇▇▇▇▇▇ COMMUNICATIONS MANAGED SERVICES, LLC
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and/or Treasurer
▇▇▇▇▇▇▇▇ COMMUNICATIONS MANAGED SERVICES OF
CALIFORNIA, INC.
▇▇▇▇▇▇▇▇ COMMUNICATIONS OF VIRGINIA, INC.
▇▇▇▇▇▇▇▇ COMMUNICATIONS PROCUREMENT, L.L.C.
▇▇▇▇▇▇▇▇ LEARNING NETWORK, INC.
▇▇▇▇▇▇▇▇ LOCAL NETWORK, LLC
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇▇▇ COMMUNICATIONS PROCUREMENT, LP
By: ▇▇▇▇▇▇▇▇ Communications, LLC, as
General Partner
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Group Executive,
Corporate Development and Finance
▇▇▇▇▇▇▇▇ TECHNOLOGY CENTER, LLC
By: ▇▇▇▇▇▇▇▇ Communications, LLC, as
Sole Member
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Group Executive,
Corporate Development and Finance
AGENTS AND LENDERS:
BANK OF AMERICA, N.A., individually, as Issuing Bank
and as Administrative Agent
By: s/▇▇▇▇▇▇▇ Honey
------------------------------------------------
Name: ▇▇▇▇▇▇▇ Honey
Title: Vice President
▇▇ ▇▇▇▇▇▇ CHASE BANK, individually,
as Issuing Bank and as Syndication Agent
By: s/Houston ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: Houston ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.,
as Co-Documentation Agent
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
CITICORP USA, INC.
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
(d/b/a ▇▇▇▇▇▇ ▇▇▇▇▇ & CO.), as Co-Documentation
Agent
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V.
By:
-------------------------------------------------
Name:
Title:
By:
-------------------------------------------------
Name:
Title:
AHAB PARTNERS, L.P.
By: s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member, Pequod LLC
General Partner, Ahab Partners, L.P.
ARK II CLO 2001-1, LIMITED
By: Patriarch Partners II, LLC,
its Collateral Manager
By: s/▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Manager
BANK OF MONTREAL
By: s/Bin ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: Bin ▇▇▇▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
BANK OF OKLAHOMA N.A.
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
BANK ONE, N.A.
By:
-------------------------------------------------
Name:
Title:
CANPARTNERS INVESTMENTS IV, LLC
By:
-------------------------------------------------
Name:
Title:
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, L.L.C,
its General Partner
By:
-------------------------------------------------
Name:
Title:
CIBC INC.
By: s/▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
CIBC Inc., as Agent
CONTRARIAN FUNDS, LLC
By: Contrarian Capital Management, LLC
as Manager
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Member
CREDIT LYONNAIS NEW YORK BRANCH
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
CREDIT SUISSE FIRST BOSTON
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Director
By: s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By: s/▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: s/▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Director
DREYFUS HIGH YIELD STRATEGIES FUND
By:
-------------------------------------------------
Name:
Title:
FERNWOOD ASSOCIATES L.P.
By:
-------------------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Authorized Officer
FRANKLIN MUTUAL ADVISERS, LLC
By: s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Authorized Signatory
▇▇▇▇▇▇▇▇ CDO, LTD.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners LLC
as its Collateral Manager
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Partner
IBM CREDIT CORPORATION
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager, Global Special Handling
KBC BANK, N.V.
By: s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: First Vice President
By: s/▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Authorized Signatory
LOEB PARTNERS CORPORATION
By: s/▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ GLOBAL ALLOCATION FUND, INC.
By: s/▇▇▇▇ ▇'▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Director MLIM
Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ SERIES FUNDS, INC.
Global Allocation Strategy Portfolio
By: s/▇▇▇▇ ▇'▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Director MLIM
Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ VARIABLE SERIES FUNDS, INC.
Global Allocation Focus Fund
By: s/▇▇▇▇ ▇'▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Director MLIM
Authorized Signatory
MIZUHO CORPORATE BANK, LTD.
By: s/▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
MUZINICH CASHFLOW CBO LTD.
By:
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Name:
Title:
MUZINICH CASHFLOW CBO II LTD.
By:
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Name:
Title:
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management
as Investment Manager
By: s/▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PPM AMERICA SPECIAL INVESTMENTS FUND, L.P.
By: PPM America, Inc., On Behalf of its Accounts
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Managing Director
R2 TOP HAT, LTD
By: Amalgamated Gadget, L.P., as Investment Manager
By: Scepter Holdings, Inc., its General Partner
By:
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Name:
Title:
SALOMON BROTHERS HOLDING COMPANY, INC.
By:
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Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
SANKATY HIGH YIELD PARTNERS II LP
By: s/▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
Portfolio Manager
SCOTIABANC INC.
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇▇▇ CLO, LTD.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners LLC
as its Collateral Manager
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Partner
▇▇▇▇▇▇▇▇▇/RMF TRANSATLANTIC CDO, LTD.
By: ▇▇▇▇▇▇▇▇▇ Capital Partners LLC
as its Collateral Manager
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Partner
WACHOVIA BANK, NATIONAL ASSOCIATION
By: s/▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Director
WINDSOR LOAN FUNDING, LIMITED
By: ▇▇▇▇▇▇▇▇▇ Capital Partners LLC
as its Investment Manager
By: s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Partner