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EXHIBIT 10.14
================================================================================
$90,000,000
CREDIT AGREEMENT
among
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.,
▇▇▇▇▇▇▇ COMMUNICATIONS FINANCE COMPANY,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
and
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
Dated as of October 28, 1999
================================================================================
CIBC WORLD MARKETS CORP.
BARCLAYS CAPITAL
GENERAL ELECTRIC CAPITAL CORPORATION
and
CAPITAL SYNDICATION CORPORATION,
an affiliate of Newcourt Credit Group, Inc.,
as Arrangers
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TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms...................................................1
1.2 Other Definitional Provisions..................................24
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................24
2.1 Term Commitments...............................................24
2.2 Procedure for Term Loan Borrowing..............................24
2.3 Repayment of Term Loans........................................25
2.4 Revolving Commitments..........................................25
2.5 Procedure for Revolving Loan Borrowing.........................26
2.6 Commitment Fees, etc. .........................................26
2.7 Termination and Reduction of Commitments.......................27
2.8 Optional Prepayments...........................................27
2.9 Mandatory Prepayments and Commitment Reductions................27
2.10 Conversion and Continuation Options............................29
2.11 Limitations on Eurodollar Tranches.............................29
2.12 Interest Rates and Payment Dates...............................29
2.13 Computation of Interest and Fees...............................30
2.14 Inability to Determine Interest Rate...........................30
2.15 Pro Rata Treatment and Payments................................31
2.16 Requirements of Law............................................32
2.17 Taxes..........................................................33
2.18 Indemnity......................................................35
2.19 Change of Lending Office.......................................36
2.20 Replacement of Lenders.........................................36
SECTION 3. REPRESENTATIONS AND WARRANTIES....................................36
3.1 Financial Condition............................................36
3.2 No Change......................................................37
3.3 Corporate Existence; Compliance with Law.......................37
3.4 Corporate Power; Authorization; Enforceable Obligations........37
3.5 No Legal Bar; Regulatory Authorizations........................38
3.6 Litigation.....................................................38
3.7 No Default.....................................................39
3.8 Ownership of Property; Liens...................................39
3.9 Intellectual Property..........................................39
3.10 Taxes..........................................................39
3.11 Federal Regulations............................................39
3.12 Labor Matters..................................................39
3.13 ERISA..........................................................40
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3.14 Investment Company Act.........................................40
3.15 Subsidiaries...................................................40
3.16 Use of Proceeds................................................40
3.17 Environmental Matters..........................................41
3.18 Accuracy of Information, etc...................................42
3.19 Security Documents.............................................42
3.20 Solvency.......................................................42
3.21 Year 2000 Matters..............................................43
3.22 Regulation H...................................................43
3.23 Certain Documents..............................................43
3.24 Venture Investors..............................................43
SECTION 4. CONDITIONS PRECEDENT..............................................43
4.1 Conditions to Effectiveness....................................43
4.2 Conditions to Each Loan........................................46
SECTION 5. AFFIRMATIVE COVENANTS.............................................47
5.1 Financial Statements...........................................47
5.2 Certificates; Other Information................................48
5.3 Payment of Obligations.........................................50
5.4 Maintenance of Existence; Compliance...........................50
5.5 Maintenance of Property; Insurance.............................50
5.6 Inspection of Property; Books and Records; Discussions.........50
5.7 Notices........................................................51
5.8 Environmental Laws.............................................51
5.9 Interest Rate Protection.......................................52
5.10 Additional Collateral, etc.....................................52
5.11 24-Market Reporting Requirement................................53
SECTION 6. NEGATIVE COVENANTS OF THE BORROWER................................53
6.1 Financial Condition Covenants..................................53
6.2 Indebtedness...................................................56
6.3 Liens..........................................................56
6.4 Fundamental Changes............................................57
6.5 Disposition of Property........................................57
6.6 Restricted Payments............................................58
6.7 Capital Expenditures...........................................59
6.8 Investments....................................................60
6.9 Optional Payments Under and Modifications of Certain
Agreements. ..................................................60
6.10 Transactions with Affiliates...................................61
6.11 Sales and Leasebacks...........................................61
6.12 Changes in Fiscal Periods......................................61
6.13 Negative Pledge Clauses........................................61
6.14 Clauses Restricting Subsidiary Distributions...................62
6.15 Lines of Business..............................................62
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6.16 Entry Into Additional Markets..................................62
SECTION 6A. NEGATIVE COVENANTS OF THE PARENT.................................62
6A.1. Financial Condition Covenants..................................62
6A.2. Indebtedness...................................................63
6A.3. Lines of Business..............................................63
6A.4. Negative Pledge Clauses........................................63
6A.5. Changes in Fiscal Periods......................................64
6A.6. No Expenditures of Unfunded 24-Market Amount...................64
SECTION 7. EVENTS OF DEFAULT.................................................64
SECTION 8. THE ADMINISTRATIVE AGENT..........................................68
8.1 Appointment....................................................68
8.2 Delegation of Duties...........................................68
8.3 Exculpatory Provisions.........................................68
8.4 Reliance by Administrative Agent...............................69
8.5 Notice of Default..............................................69
8.6 Non-Reliance on Administrative Agent and Other Lenders.........69
8.7 Indemnification................................................70
8.8 Administrative Agent in Its Individual Capacity................70
8.9 Successor Administrative Agent.................................71
SECTION 9. MISCELLANEOUS.....................................................71
9.1 Amendments and Waivers.........................................71
9.2 Notices........................................................72
9.3 No Waiver; Cumulative Remedies.................................73
9.4 Survival of Representations and Warranties.....................73
9.5 Payment of Expenses and Taxes..................................73
9.6 Successors and Assigns; Participations and Assignments.........74
9.7 Adjustments; Set-off...........................................77
9.8 Counterparts...................................................77
9.9 Severability...................................................77
9.10 Integration....................................................77
9.11 GOVERNING LAW..................................................78
9.12 Submission To Jurisdiction; Waivers............................78
9.13 Acknowledgements...............................................78
9.14 Releases of Guarantees and Liens...............................79
9.15 Confidentiality................................................79
9.16 WAIVERS OF JURY TRIAL..........................................80
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ANNEX:
A Pricing Grid
SCHEDULES:
1.1A Commitments
1.1B Venture Investors
3.4 Consents, Authorizations, Filings and Notices
3.15 Subsidiaries
3.19(a) UCC Filing Jurisdictions
4.2 Existing Leased Premises
6.16A Initial Markets
6.16B Additional Markets
6A.2(a) Existing Parent Indebtedness
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Capital Call Agreement
C Form of Lockbox Agreement
D Form of Compliance Certificate
E-1 Form of Closing Certificate
E-2 Form of Secretary's Certificate
F Form of Assignment and Acceptance
G Form of Exemption Certificate
H Form of Monthly Summary Market Information
I Form of Management Agreement
J Form of Opinion of ▇▇▇▇▇ ▇▇▇▇ LLP
K Form of Opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
L Form of Note Evidencing Permitted Borrower Subordinated Indebtedness
M Form of Landlord Waiver and Consent
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CREDIT AGREEMENT, dated as of October 28, 1999, among
▇▇▇▇▇▇▇ COMMUNICATIONS, INC., a Delaware corporation (the "Parent"), ▇▇▇▇▇▇▇
COMMUNICATIONS FINANCE COMPANY, a Delaware corporation (the "Borrower"), the
several banks and other financial institutions or entities from time to time
parties to this Agreement (the "Lenders"), and CANADIAN IMPERIAL BANK OF
COMMERCE ("CIBC"), as Administrative Agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed
in this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": 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 Effective
Rate in effect on such day plus 2 of 1%. For purposes hereof: "Prime Rate" shall
mean the rate of interest per annum publicly announced from time to time by CIBC
as its prime rate in effect at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of interest charged by CIBC in
connection with extensions of credit to debtors). Any change in the ABR due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is
based upon the ABR.
"Additional Capital": as defined in Section 6.16.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": CIBC, together with its affiliates, as
the Administrative Agent for the Lenders under this Agreement and the other Loan
Documents, together with any of its successors.
"Affiliate": as to any Person, any other Person that, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to the sum of (a) the aggregate undrawn amount of such Lender's
Commitments at such time and (b) the aggregate principal amount of such Lender's
Term Loans and Revolving Loans then outstanding.
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"Aggregate Exposure Percentage": with respect to any Lender at
any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": (a) until the Borrower shall have
delivered Compliance Certificates pursuant to Section 5.2(b) indicating that the
Consolidated Borrower EBITDA has been greater than zero for a period of two
consecutive fiscal quarters (the "Positive EBITDA Date"), (i) until the Borrower
shall have achieved four Completed Markets (the "Completed Market Target Date"),
(x) 3.25%, in the case of ABR Loans, and (y) 4.25%, in the case of Eurodollar
Loans, and (ii) from and after the Completed Market Target Date, (x) 3.00%, in
the case of ABR Loans, and (y) 4.00%, in the case of Eurodollar Loans, and (b)
from and after the first Adjustment Date occurring after the Positive EBITDA
Date, a percentage determined pursuant to the Pricing Grid.
"Approved Fund": with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding any such Disposition permitted by clause
(a), (b), (c) or (d) of Section 6.5) that yields gross proceeds to the Borrower
or any of its Subsidiaries (valued at the initial principal amount thereof in
the case of non-cash proceeds consisting of notes or other debt securities and
valued at fair market value in the case of other non-cash proceeds) in excess of
$50,000.
"Assignee": as defined in Section 9.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit F.
"Assignor": as defined in Section 9.6(c).
"Available Revolving Commitment": as to any Revolving Lender
at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) the aggregate principal amount of
such Lender's Revolving Loans then outstanding.
"Available Term Commitment": as to any Term Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's Term
Commitment then in effect over (b) the aggregate amount of such Lender's Term
Loans made under such Term Loan Commitment.
"Benefitted Lender": as defined in Section 9.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor to its jurisdiction).
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"Borrower": as defined in the preamble hereto.
"Borrower Debt-to-Contributed Capital Ratio": on any date, the
ratio of Consolidated Borrower Total Debt on such date to Contributed Capital on
such date.
"Borrowing Date": any Business Day specified by the Borrower
in accordance with the terms hereof as a date on which the Borrower requests the
relevant Lenders to make Loans hereunder.
"Borrower's Telecommunications Business": the business of (a)
transmitting, or providing services related to the transmission of, voice, fax,
video or data through owned or leased transmission equipment, facilities and
services, including the sale or lease of related network equipment to customers,
(b) providing Internet access, web hosting and design, E-commerce solutions and
content products and services and (c) evaluating, participating or pursuing any
other activity or opportunity that is ancillary or complementary to any activity
described in clause (a) or (b) of this definition.
"Business": as defined in Section 3.17(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to close, provided, that with respect to notices and determinations in
connection with, and payments of principal and interest on, Eurodollar Loans,
such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.
"Business Plan": as defined in Section 4.1(c).
"Capital Call Agreement": the Capital Call Agreement to be
executed and delivered by the Parent, the Borrower and the Administrative Agent,
substantially in the form of Exhibit B, as the same may be amended, supplemented
or otherwise modified from time to time.
"Capital Expenditures": for any period, with respect to the
Borrower and its Subsidiaries, the aggregate of all expenditures by the Borrower
and its Subsidiaries for the acquisition or leasing (pursuant to a capital
lease) of fixed or capital assets (including capital costs related to the
acquisition of FCC and PUC licenses and permits) or additions to property, plant
or equipment (including replacements, capitalized repairs and improvements
during such period) that should be capitalized under GAAP on a consolidated
balance sheet of the Borrower and its Subsidiaries; provided, however, that no
consideration paid for or related to the acquisition of any Regulatory
Authorization (other than an FCC or PUC license) necessary for the establishment
of a CLEC and no capitalized interest or financing expense shall be treated as a
Capital Expenditure nor shall any expenditure of any Reinvestment Deferred
Amount be treated as a Capital Expenditure if used to acquire assets used or
useful in the Borrower's Telecommunications Business.
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"Capital Lease Obligations": as to the Borrower and its
Subsidiaries, the obligations of the Borrower and its Subsidiaries to pay rent
or other amounts under any lease of (or other arrangement conveying the right to
use) real or personal property, or a combination thereof, which obligations are
required to be classified and accounted for as capital leases on a consolidated
balance sheet of the Borrower and its Subsidiaries under GAAP, and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, bankers' acceptances, time deposits, eurodollar time
deposits or overnight bank deposits having maturities of six months or less from
the date of acquisition issued by any Lender or by any commercial bank organized
under the laws of the United States or any state thereof having combined capital
and surplus of not less than $500,000,000; (c) commercial paper of an issuer
rated at least A-1 by Standard & Poor's Ratings Services ("S&P") or P-1 by
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by
a nationally recognized rating agency, if both of the two named rating agencies
cease publishing ratings of commercial paper issuers generally, and maturing
within nine months from the date of acquisition; (d) repurchase obligations of
any Lender or of any commercial bank satisfying the requirements of clause (b)
of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
government; (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or territory
of the United States, by any political subdivision or taxing authority of any
such state, commonwealth or territory or by any foreign government, the
securities of which state, commonwealth, territory, political subdivision,
taxing authority or foreign government (as the case may be) are rated at least A
by S&P or A by Moody's; (f) securities with maturities of one year or less from
the date of acquisition backed by standby letters of credit issued by any Lender
or any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds at least 95%
of the assets of which are invested in the types of investments satisfying the
requirements of clauses (a) through (f) of this definition.
"CIBC": as defined in the preamble hereto.
"CLEC": a competitive local exchange carrier.
"Closing Date": as defined in Section 4.1.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
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"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by any Security
Document.
"Commitment": as to any Lender, the sum of the Term Commitment
and the Revolving Commitment of such Lender, and "Commitments" means the Term
Commitments and the Revolving Commitments of all Lenders in the aggregate.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Communications Act": the Communications Act of 1934, as
amended (including, without limitation, the Telecommunications Act of 1996), or
any successor statute or statutes thereto, and all regulations thereunder, in
each case as from time to time in effect.
"Communications Licenses": all licenses, authorizations,
certifications, waivers and permits required from the FCC, any PUC or any other
relevant Governmental Authority acting under applicable law or regulations
pertaining to or regulating Borrower's Telecommunications Business.
"Completed Market": any Market in which the Borrower or any of
its Subsidiaries (a) has deployed switches and network equipment for the
provision of CLEC telephony service, data transport, internet access and other
related services, (b) is switching paid traffic through its own facilities and
(c) has sales, customer service and billing systems operational.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit D.
"Consolidated Borrower EBITDA": for any period, Consolidated
Borrower Net Income for such period plus, without duplication and to the extent
deducted in determining such Consolidated Borrower Net Income for such period,
the sum of (a) income tax expense and, to the extent based upon income,
franchise tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses, and (f) any other non-cash charges,
and minus, to the extent included in determining such Consolidated Borrower Net
Income for such period, the sum of (a) interest income, (b) any extraordinary,
unusual or non-recurring income or gains and (c) any other non-cash income, all
as determined on a consolidated basis. For the purposes of calculating
Consolidated Borrower EBITDA for any period in connection with any determination
of the Consolidated Borrower Leverage Ratio, (i) if at any time during such
period the Borrower or any Subsidiary shall have made any Material Disposition,
the Consolidated Borrower EBITDA for such period shall be reduced by an amount
equal to the Consolidated Borrower EBITDA (if positive) attributable to the
property that is the
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subject of such Material Disposition for such period or increased by an amount
equal to the Consolidated Borrower EBITDA (if negative) attributable thereto for
such period and (ii) if during such period the Borrower or any Subsidiary shall
have made a Material Acquisition, Consolidated Borrower EBITDA for such period
shall be calculated after giving pro forma effect thereto as if such Material
Acquisition occurred on the first day of such period. As used in this
definition, "Material Acquisition" and "Material Disposition" mean,
respectively, any acquisition or disposition of property or series of related
acquisitions or dispositions of property that comprises all or substantially all
of an operating unit of a business or constitutes all or substantially all of
the common stock of a Person.
"Consolidated Borrower Leverage Ratio": as at the last day of
any period of two consecutive fiscal quarters, the ratio of (a) Consolidated
Borrower Total Debt on such day to (b) two times Consolidated Borrower EBITDA
for such period.
"Consolidated Borrower Net Income": for any period, the
consolidated net income (or loss) of the Borrower and its Subsidiaries,
determined on a consolidated basis in accordance with GAAP; provided that there
shall be excluded (a) the aggregate amount of reciprocal compensation receivable
with respect to calls terminated to Internet service providers and accrued by
the Borrower and its Subsidiaries during such period (except to the extent of
the net amount thereof actually received by the Borrower and its Subsidiaries
during such period in cash), (b) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or
consolidated with the Borrower or any of its Subsidiaries, (c) the income (or
deficit) of any Person (other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (d) the
undistributed earnings of any Subsidiary of the Borrower to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any Contractual Obligation (other
than under any Loan Document) or Requirement of Law applicable to such
Subsidiary.
"Consolidated Borrower Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Borrower and its Subsidiaries (other
than Permitted Borrower Subordinated Indebtedness) at such date, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Current Assets": at any date, all amounts (other
than cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts
that would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet of
the Borrower and its Subsidiaries at such date, but excluding (a) the current
portion of any Funded Debt of the Borrower and its Subsidiaries and
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(b) without duplication of clause (a) above, all Indebtedness consisting of
Revolving Loans to the extent otherwise included therein.
"Consolidated Interest Coverage Ratio": at any date, the ratio
of (a) Consolidated Borrower EBITDA for the six-month period ended on such date
to (b) Consolidated Interest Expense for such period.
"Consolidated Interest Expense": for any period, the sum,
without duplication, of (a) total cash interest expense (including that
attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries
for such period with respect to all outstanding Indebtedness of the Borrower and
its Subsidiaries (including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Hedge Agreements in respect of interest rates to the extent
such net costs are allocable to such period in accordance with GAAP) and (b) the
amount of dividends paid by the Borrower to Parent during such period which
dividends were permitted to be paid pursuant to Section 6.6(b)(i).
"Consolidated Parent Capitalization": at any date, the sum of
Consolidated Parent Total Debt and Consolidated Parent Equity Capital.
"Consolidated Parent Debt-to-Capitalization Ratio": at any
date of determination, the ratio (expressed as a percentage) of (a) Consolidated
Parent Total Debt on such date of determination to (b) the Consolidated Parent
Capitalization on such date of determination.
"Consolidated Parent EBITDA": for any period, Consolidated
Parent Net Income for such period plus, without duplication and to the extent
deducted in determining such Consolidated Parent Net Income for such period, the
sum of (a) income tax expense and, to the extent based upon income, franchise
tax expense, (b) interest expense, amortization or writeoff of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary, unusual or
non-recurring non-cash expenses or losses and (f) any other non-cash charges,
and minus, to the extent included in determining of such Consolidated Parent Net
Income for such period, the sum of (a) interest income, (b) any extraordinary,
unusual or non-recurring income or gains and (c) any other non-cash income, all
as determined on a consolidated basis. For the purposes of calculating
Consolidated Parent EBITDA for any period in connection with any determination
of the Consolidated Parent Leverage Ratio, (i) if at any time during such period
the Parent or any of its Subsidiaries shall have made any Material Disposition,
the Consolidated Parent EBITDA for such period shall be reduced by an amount
equal to the Consolidated Parent EBITDA (if positive) attributable to the
property that is the subject of such Material Disposition for such period or
increased by an amount equal to the Consolidated Parent EBITDA (if negative)
attributable thereto for such period and (ii) if during such period the Parent
or any of its Subsidiaries shall have made a Material Acquisition, Consolidated
Parent EBITDA for such period shall be calculated after giving pro forma effect
thereto as if such Material Acquisition occurred on the first day of such
period. As used in this definition, "Material
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Acquisition" and "Material Disposition" mean, respectively, any acquisition or
disposition of property or series of related acquisitions or dispositions of
property that comprise all or substantially all of an operating unit of a
business or constitutes all or substantially all of the common stock of a
Person.
"Consolidated Parent Equity Capital": at any date, the
aggregate amount of paid in equity capital of Parent on a consolidated basis,
excluding any accumulated deficit.
"Consolidated Parent Leverage Ratio": as at the last day of
any period of two consecutive fiscal quarters, the ratio of (a) Consolidated
Parent Total Debt on such day to (b) two times Consolidated Parent EBITDA for
such period.
"Consolidated Parent Net Income": for any period, the
consolidated net income (or loss) of the Parent and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the aggregate amount of reciprocal compensation receivable with
respect to calls terminated to Internet service providers and accrued by the
Parent and its Subsidiaries during such period (except to the extent actually
received by the Parent and its Subsidiaries during such period in cash), (b) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Parent or is merged into or consolidated with the Parent or
any of its Subsidiaries, (c) the income (or deficit) of any Person (other than a
Subsidiary of the Parent) in which the Parent or any of its Subsidiaries has an
ownership interest, except to the extent that any such income is actually
received by the Parent or such Subsidiary in the form of dividends or similar
distributions and (d) the undistributed earnings of any Subsidiary of the Parent
to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any Contractual Obligation (other than under any Loan Document) or Requirement
of Law applicable to such Subsidiary.
"Consolidated Parent Total Debt": at any date, the aggregate
principal amount of all Indebtedness of the Parent and its Subsidiaries (other
than Permitted Borrower Subordinated Indebtedness) at such date, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Pro Forma Debt Service": as of the end of the
last day of any fiscal quarter of the Borrower, the sum of the following
determined on a consolidated basis, without duplication, for the Borrower and
its Subsidiaries in accordance with GAAP: (a) the aggregate amount of principal
payments scheduled to be made during the period of twelve months following such
last day in respect of Indebtedness of the Borrower or any of its Subsidiaries
(including scheduled principal payments in respect of the Term Loans) and (b)
Consolidated Interest Expense to be incurred during the period of twelve months
following such last day (based upon, in the case of floating-rate debt, the
assumption that the interest rate in effect on such last day will remain in
effect throughout such twelve-month period).
"Consolidated Pro Forma Debt Service Coverage Ratio": at any
date, the ratio of (a) two times Consolidated Borrower EBITDA for the six-month
period ended on such date to (b) Consolidated Pro Forma Debt Service as of the
end of the last day of such period.
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"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current Liabilities
on such date.
"Continuing Directors": the directors of the Parent on the
Closing Date and each other director, if, in each case, such other director's
nomination for election to the board of directors of the Parent is recommended
by at least 66-2/3% of the then Continuing Directors or such other director
receives the vote of the Venture Investors in his or her election by the
shareholders of the Parent.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contributed Capital": with respect to the Borrower on any
date, the sum of (a) the aggregate amount which theretofore shall have been
received by the Borrower (in cash or other assets, provided that any such other
assets shall be valued at the book value thereof as reflected on the
consolidated financial statements of the Parent, so long as such valuation is
reasonably acceptable to the Lenders) as a contribution to its capital or as
consideration for the issuance of Capital Stock of the Borrower (including all
Permitted Borrower Subordinated Indebtedness outstanding on such date) and (b)
the aggregate amount of Parent Expenditure Contributions.
"Contributed Parent Indebtedness": the amount of proceeds of
Indebtedness incurred by the Parent pursuant to Section 6A.2(b) which is
contributed as non-redeemable equity capital to the Borrower.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Disposition": with respect to any property, any sale, lease,
sale and leaseback, assignment, conveyance, transfer or other disposition
thereof. The terms "Dispose" and "Disposed of" shall have correlative meanings.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States.
"Environmental Laws": any and all foreign, Federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
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"Eurocurrency Reserve Requirements": for any day as applied to
a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System; provided, however, that, in the case of any Lender that is not subject
to such reserve requirements, the Eurocurrency Reserve Requirements shall be
deemed to be zero.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period. In the event that such rate
does not appear on Page 3750 of the Telerate screen (or otherwise on such
screen), the "Eurodollar Base Rate" shall be determined by reference to such
other comparable publicly available service for displaying eurodollar rates as
may be mutually acceptable to the Administrative Agent and the Borrower or, in
the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M., New York
City time, two Business Days prior to the beginning of such Interest Period in
the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans under a particular Facility the then current Interest Periods with respect
to all of which begin on the same date and end on the same later date (whether
or not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
excess, if any, of (a) the sum, without duplication, of (i) Consolidated
Borrower Net Income for such fiscal year,
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(ii) an amount equal to the amount of all non-cash charges (including
depreciation, amortization and non-cash interest expense and taxes) deducted in
arriving at such Consolidated Borrower Net Income, (iii) decreases in
Consolidated Working Capital for such fiscal year, and (iv) an amount equal to
the aggregate net non-cash loss on the Disposition of property by the Borrower
and its Subsidiaries during such fiscal year (other than sales of inventory,
capacity in a telecommunications network or dark fiber in the ordinary course of
business), to the extent deducted in arriving at such Consolidated Borrower Net
Income over (b) the sum, without duplication, of (i) an amount equal to the
amount of all non-cash credits included in arriving at such Consolidated
Borrower Net Income, (ii) the aggregate amount actually paid (x) by the Borrower
and its Subsidiaries in cash during such fiscal year on account of Capital
Expenditures expended in accordance with this Agreement (excluding the principal
amount of Indebtedness incurred in connection with such expenditures and any
such expenditures financed with the proceeds of any Reinvestment Deferred
Amount) and (y) by the Borrower as dividends to the Parent pursuant to Section
6.6, (iii) the aggregate amount of all prepayments of Revolving Loans during
such fiscal year to the extent accompanying permanent optional reductions of the
Revolving Commitments and all optional prepayments of the Term Loans during such
fiscal year, (iv) the aggregate amount of all regularly scheduled principal
payments of Funded Debt (including the Term Loans) of the Borrower and its
Subsidiaries made during such fiscal year (other than in respect of any
revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (v) increases in Consolidated Working
Capital for such fiscal year, and (vi) an amount equal to the aggregate net
non-cash gain on the Disposition of property by the Borrower and its
Subsidiaries during such fiscal year (other than sales of inventory, capacity in
a telecommunications network or dark fiber in the ordinary course of business),
to the extent included in arriving at such Consolidated Borrower Net Income.
"Excess Cash Flow Application Date": as defined in Section
2.9(c).
"FCC": the Federal Communications Commission of the United
States or any successor to its jurisdiction.
"Facility": each of (a) the Term Commitments and the Term
Loans made thereunder (the "Term Facility") and (b) the Revolving Commitments
and the Revolving Loans made thereunder (the "Revolving Facility").
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.
"Funded Debt": as to any Person, all Indebtedness of such
Person that matures more than one year from the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year from such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
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extend credit during a period of more than one year from such date, including
all current maturities and current sinking fund payments in respect of such
Indebtedness whether or not required to be paid within one year from the date of
its creation and, in the case of the Borrower, Indebtedness in respect of the
Loans.
"Funding Office": the office of the Administrative Agent
specified in Section 9.2 or such other office as may be specified from time to
time by the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government (including in the case of the Borrower and its
Subsidiaries, the FCC and each applicable PUC), any applicable securities
exchange and any applicable self-regulatory organization.
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by the Parent, the Borrower
and each Subsidiary, substantially in the form of Exhibit A, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not
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stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantors": the collective reference to the Parent and the
Subsidiaries of the Borrower.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements designed to hedge against fluctuations in
interest rates or currency exchange rates.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than trade payables incurred in the ordinary course of such
Person's business that are current or are being contested in good faith), (c)
all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations of such Person, (f)
all obligations of such Person, contingent or otherwise, as an account party
under acceptance facilities, (g) the liquidation value of all mandatorily
redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations
of such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above, (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by any Lien on property (including accounts and
contract rights) owned by such Person, whether or not such Person has assumed or
become liable for the payment of such obligation, and (j) for the purposes of
Sections 6.2 and 7(e) only, all obligations of such Person in respect of Hedge
Agreements. 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.
"Initial Capital Contributions": as defined in Section 4.1(b).
"Initial Markets": the Markets (a) entry into which by the
Borrower and its Subsidiaries has been approved by the board of directors of the
Parent as of the Closing Date and (b) listed on Schedule 6.16A.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or
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foreign laws or otherwise, including copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to ▇▇▇ at law or in equity for any infringement or
other impairment thereof, including the right to receive all proceeds and
damages therefrom.
"Interconnection Agreement": any agreement entered into with
an incumbent provider of local exchange telephone service in accord with
Sections 251 and 252 of the Communications Act.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Loan that is an ABR
Loan), the date of any repayment or prepayment made in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto; and (b) thereafter,
each period commencing on the last day of the next preceding Interest Period
applicable to such Eurodollar Loan and ending one, two, three or six months
thereafter, as selected by the Borrower by irrevocable notice to the
Administrative Agent (which notice must be received by the Administrative Agent
no later than 11:00 A.M., New York City time, three Business Days prior to the
last day of the then current Interest Period with respect thereto); provided
that, all of the foregoing provisions relating to Interest Periods are subject
to the following:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding
Business Day;
(ii) the Borrower may not select an Interest Period
under a particular Facility that would extend beyond the Termination
Date or beyond the date final payment is due on the Term Loans, as the
case may be;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the calendar
month at the end of such Interest Period; and
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(iv) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Investments": as defined in Section 6.8.
"Landlord Waiver and Consent": a landlord waiver and consent
(a) in the form of Exhibit M or with such non-substantive, non-material changes
thereto as shall be approved by the Administrative Agent or (b) in such other
form as shall be reasonably satisfactory to the Required Lenders, provided that,
in the case of this clause (b), any Lender that does not indicate its
disapproval of such other form within five days of having been presented by the
Borrower with such other form shall be deemed to have found such other form to
be reasonably satisfactory.
"Lenders": as defined in the preamble hereto.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease)
having substantially the same economic effect as any of the foregoing.
"Loan": any loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Notes, the Capital Call Agreement and the Lockbox Agreement.
"Loan Parties": The Parent, the Borrower and each Subsidiary
of the Borrower that is a party to a Loan Document.
"Lockbox Agreement": the Lockbox Agreement to be executed and
delivered by the Borrower, the Administrative Agent and Bank of America, N.A.,
as lockbox bank thereunder, substantially in the form of Exhibit C, as the same
may be amended, supplemented or otherwise modified from time to time.
"Majority Facility Lenders": with respect to either Facility,
the holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Revolving Loans, as the case may be (or, in the case of the
Revolving Facility, prior to any termination of the Revolving Commitments, the
holders of more than 50% of the Total Revolving Commitments).
"Management Agreement": as defined in Section 4.1(c)(ii).
"Market": any MSA and its environs located in the United
States of America.
"Material Adverse Effect": a material adverse effect on (a)
the business, property, operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement or any of the other Loan
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Documents or the rights or remedies of the Administrative Agent or the Lenders
hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Mortgage Recording Certificate": with respect to any
Mortgage, a certificate duly executed by a Responsible Officer specifying the
appropriate office or offices for filing such Mortgage in order to perfect a
Lien on the Property described therein and proceeds thereof.
"Mortgages": each of the mortgages and deeds of trust made by
any Loan Party in favor of, or for the benefit of, the Administrative Agent for
the benefit of the Lenders, in form and substance satisfactory to the
Administrative Agent, as the same may be amended, supplemented or otherwise
modified from time to time.
"MSA": a Metropolitan Statistical Area as such term is defined
and modified by the U.S. Census Bureau.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
(including, without limitation, any prepayment premium thereon) secured by a
Lien expressly permitted hereunder on any asset that is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to a Security
Document) and other customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and excluding any portion of any
such cash proceeds which Borrower or any of its Subsidiaries determines should
be reserved for post-closing adjustments (provided that such reserved portion
shall constitute Net Cash Proceeds when and to the extent that such reserve is
no longer required) and (b) in connection with any issuance or sale of Capital
Stock or any incurrence of Indebtedness, the cash proceeds received from such
issuance or incurrence, net of attorneys' fees, investment banking fees,
accountants' fees, underwriting discounts and commissions and other customary
fees and expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.17(a).
"Non-U.S. Lender": as defined in Section 2.17(d).
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"Notes": the collective reference to any promissory note
evidencing Loans.
"Obligations": the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to the Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of Hedge
Agreements, any affiliate of any Lender), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any other
Loan Document, any Hedge Agreement entered into with any Lender or any affiliate
of any Lender or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest, fees,
indemnities, costs, expenses (including all fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to be
paid by the Borrower pursuant hereto) or otherwise.
"Operations Support Systems": the software systems of Parent
and its Subsidiaries with respect to the provisioning, care of customers,
network surveillance, integration and billing of or related to their
telecommunications services.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Parent": as defined in the preamble hereto.
"Parent Expenditure Contributions": the aggregate amount of
expenditures by the Parent on behalf of the Borrower and its Subsidiaries
(excluding expenditures for assets not owned by the Borrower or its Subsidiaries
and excluding expenditures made for services covered by payments under the
Management Agreement).
"Parent's Telecommunications Business": the business of (i)
transmitting, or providing services related to the transmission of, voice, fax,
video or data through owned or leased transmission equipment, facilities and
services, including the sale or lease of related network equipment to customers,
(ii) providing Internet access, web hosting and design, E-commerce solutions and
content products and services, (iii) creating, developing and marketing
communications-related network equipment, software and devices for use in such
transmission or provision and (iv) evaluating, participating or pursuing any
other activity or opportunity that is similar, related, ancillary or
complementary to any activity described in clause (i), (ii) or (iii) of this
definition.
"Participant": as defined in Section 9.6(b).
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"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": any acquisition, consisting of a
single transaction or a series of related transactions, by the Borrower or any
one or more of its Wholly Owned Subsidiaries of all of the Capital Stock of, or
all or a substantial part of the assets of, or of a business unit of, any Person
for the purpose of developing or expanding the Borrower's Telecommunications
Business in certain Markets in accordance with the Business Plan (such business,
unit or division, the "Acquired Business"), provided that (a) the Borrower shall
have delivered to each Lender, at least five Business Days prior to the
consummation of such acquisition, evidence reasonably satisfactory to the
Required Lenders that the Borrower shall be in compliance, on a pro forma basis
after giving effect to such acquisition, with the covenants contained in Section
6.1, recomputed as at the last day of the most recently ended fiscal quarter of
the Borrower for which financial statements shall have been delivered to the
Lenders as if such acquisition had occurred on the first day of each relevant
period for testing such compliance, (b) no Default or Event of Default shall
have occurred and be continuing, or would occur after giving effect to such
acquisition, (c) all actions required to be taken with respect to any acquired
or newly formed Subsidiary or otherwise with respect to the Acquired Business in
such acquisition under Section 5.10 shall have been taken, (d) the aggregate
Purchase Prices in respect of such acquisition and all other Permitted
Acquisitions consummated subsequent to the date hereof shall not exceed
$8,000,000 and (e) any such acquisition shall have been approved by the board of
directors or such comparable governing body of the Person (or whose business,
unit or division is, as the case may be) being acquired.
"Permitted Borrower Subordinated Indebtedness": Indebtedness
of the Borrower to one or more of its Affiliates (including the Parent) which is
evidenced by a promissory note substantially in the form of Exhibit L.
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee benefit plan that
is covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 3.1(a).
"Projections": as defined in Section 5.2(c).
"Properties": as defined in Section 3.17(a).
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"Property": any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"PUC": with respect to any state, the public utilities
commission, public service commission or other state Governmental Authority with
responsibility for telecommunications regulation in such state and/or having
telecommunications regulatory jurisdiction over the Parent, the Borrower or any
of its Subsidiaries, or any of their respective businesses, operations or
assets.
"Purchase Price": with respect to any Permitted Acquisition,
the sum of (a) the aggregate amount of cash paid by the Borrower and its
Subsidiaries in connection with such acquisition and (b) the value (as
determined for purposes of such acquisition in accordance with the applicable
acquisition agreement) of all Capital Stock of the Borrower issued or given, and
all other assets of the Borrower and its Subsidiaries given, as consideration in
connection with such acquisition.
"Quarterly Revenue": for any fiscal quarter of the Borrower,
the aggregate amount of revenues recorded by the Borrower and its Subsidiaries
on a consolidated basis during such quarter, determined in accordance with GAAP,
excluding the aggregate amount of reciprocal compensation receivable with
respect to calls terminated to Internet service providers and accrued by the
Borrower and its Subsidiaries during such quarter (except to the extent actually
received by the Borrower and its Subsidiaries during such quarter in cash).
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of the Borrower or any of its Subsidiaries.
"Register": as defined in Section 9.6(d).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Regulatory Authorization": as defined in Section 7(m).
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Subsidiaries in connection therewith that are not applied to prepay
the Term Loans or reduce the Commitments pursuant to Section 2.9(b) as a result
of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer stating that no Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a Subsidiary)
intends and expects to use all or a specified portion of the Net
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Cash Proceeds of an Asset Sale or Recovery Event to acquire assets used or
useful in Borrower's Telecommunications Business.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets used or useful in the Borrower's Telecommunications Business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the date occurring 210 days after such
Reinvestment Event and (b) the date on which the Borrower shall have determined
not to acquire assets used or useful in the Borrower's Telecommunication
Business with all or any portion of the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .21 through .35 of PBGC Reg. '4043.
"Required Lenders": at any time, the holders of more than
66 2/3% of the sum of (a) the undrawn Commitments at such time and (b) the
aggregate unpaid principal amount of the Term Loans and Revolving Loans then
outstanding.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": with respect to any Person, the chief
executive officer, president or chief financial officer of such Person, but in
any event, with respect to financial matters, the chief financial officer of
such Person.
"Restricted Payments": as defined in Section 6.6.
"Revolving Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Loans in an aggregate principal amount
not to exceed the amount set forth under the heading "Revolving Commitment"
opposite such Lender's name on Schedule 1.1A or in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof. The original amount of the Total
Revolving Commitments is $10,000,000.
"Revolving Commitment Fee Rate": 2 of 1% per annum.
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"Revolving Commitment Period": the period from and including
the Closing Date to the Termination Date.
"Revolving Lender": each Lender that has a Revolving
Commitment or that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.4(a).
"Revolving Percentage": as to any Revolving Lender at any
time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments (or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Loans then outstanding constitutes
of the aggregate principal amount of the Revolving Loans then outstanding).
"SEC": the Securities and Exchange Commission of the United
States and any successor to its jurisdiction.
"Security Documents": the collective reference to the
Guarantee and Collateral Agreement, the Mortgages and all other security
documents hereafter delivered to the Administrative Agent granting a Lien on any
property of any Person to secure the obligations and liabilities of any Loan
Party under any Loan Document.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the probable liability of such
Person on its debts as such debts become absolute and matured, (c) such Person
will not have, as of such date, an unreasonably small amount of capital with
which to conduct its business, and (d) such Person will be able to pay its debts
as they mature. For purposes of this definition, (i) "debt" means liability on a
"claim", and (ii) "claim" means any (x) right to payment, whether or not such a
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured
or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured or unmatured,
disputed, undisputed, secured or unsecured.
"Stage 2 Commencement Date": as defined in Section 6.1(a).
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"Stock Agreements": as defined in Section 4.1(d).
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Borrower.
"Term Commitment": as to any Lender, the obligation of such
Lender, if any, to make a Term Loan to the Borrower hereunder in a principal
amount not to exceed the amount set forth under the heading "Term Commitment"
opposite such Lender's name on Schedule 1.1A or in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same be changed from
time to time pursuant to the terms hereof. The original aggregate amount of the
Term Commitments is $80,000,000.
"Term Commitment Fee Rate": a per annum rate based on Term
Facility usage as set forth below:
% of Term Facility Drawn Rate
------------------------ ----
< 33 1/3% 1.25%
> 33 1/3% but < 66 2/3% 1.00%
-
> 66 2/3% 0.75%;
-
provided that if the aggregate outstanding principal amount of Term Loans on the
first anniversary of the Closing Date is less than $35,000,000 (the excess on
any such day of $35,000,000 over the aggregate then unpaid principal amount of
the Term Loans being the "Shortfall Amount" on such day), the Term Commitment
Fee Rate applicable to the Shortfall Amount on such day shall be a per annum
rate equal to 50% of the Applicable Margin then in effect with respect to
Eurodollar Loans; provided, further, that the foregoing proviso shall have no
force or effect on and after the day on which the aggregate amount of the Term
Loans made hereunder shall exceed $35,000,000.
"Term Commitment Period": the period from and including the
Closing Date to and including the earlier of (a) September 30, 2001 and (b) the
date on which the Term Commitments are terminated in accordance with this
Agreement.
"Termination Date": the eighth anniversary of the Closing
Date.
"Term Lender": each Lender that has a Term Commitment or is
the holder of a Term Loan.
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"Term Loan": as defined in Section 2.1.
"Term Percentage": as to any Term Lender at any time prior to
the Closing Date, the percentage which the amount of such Lender's Term
Commitment then constitutes of the Total Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such
Lender's Term Loans and unused Term Commitment then outstanding constitutes of
the aggregate principal amount of the Term Loans and Term Commitments then
outstanding).
"Total Revolving Commitments": at any time, the aggregate
amount of the Revolving Commitments then in effect.
"Total Term Commitments": at any time, the aggregate amount
of the Term Commitments then in effect.
"Transferee": any Assignee or Participant.
"24-Market Completion Amount": as defined in Section 5.11.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"Unfunded 24-Market Amount": at any time, an amount equal to
the excess, if any, of (a) the 24-Market Completion Amount set forth in the most
recent certificate delivered pursuant to Section 5.11, over (b) the aggregate
amount of cash and Cash Equivalents then held by the Borrower and its
Subsidiaries.
"United States": the United States of America.
"Venture Investors": the Persons listed on Schedule 1.1B.
"Venture Stockholders Agreement": as defined in Section
4.1(d).
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other Wholly
Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the other Loan Documents or any certificate or other
document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to The Parent, the Borrower and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them
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under GAAP, (ii) the words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation" and (iii) the words "asset"
and "property" shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, Capital Stock, securities, revenues, accounts, leasehold interests and
contract rights.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Commitments. Subject to the terms and conditions
hereof, each Term Lender severally agrees to make term loans (each, a "Term
Loan") to the Borrower from time to time during the Term Commitment Period in an
aggregate principal amount for all Term Lenders that, taken together with the
aggregate principal amount of all other Term Loans made by the Term Lenders
during the Term Commitment Period, shall not exceed the Total Term Commitments;
provided that (i) no Lender shall be required to make Term Loans in any event or
at any time in excess of its respective Term Commitment, (ii) each drawing of
Term Loans by the Borrower on any date during the Term Commitment Period shall
be in a minimum aggregate principal amount of $2,500,000 (or, if the then
aggregate Available Term Commitments are less than $2,500,000, such lesser
amount) and (iii) at the end of the last day of the Term Commitment Period, the
Available Term Commitment of each Lender, if any, automatically shall be reduced
to zero. The Term Loans may from time to time be Eurodollar Loans or ABR Loans,
as determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.10.
2.2 Procedure for Term Loan Borrowing. The Borrower may,
subject to Section 2.1, borrow under the Term Commitments on any Business Day
during the Term Commitment Period; provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 10:00 A.M., New York City time, (i) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(ii) one Business Day prior to the requested Borrowing Date, in the case of ABR
Loans), specifying (x) the amount and Type of Term Loans to be borrowed, (y) the
requested Borrowing Date and (z) in the case of Eurodollar Loans, the respective
amounts of each such Type of Loan and the respective lengths of the initial
Interest Period therefor. Each such borrowing under the Term Commitments shall
be in an amount equal to (A) in the case of ABR Loans, $1,000,000 or a whole
multiple of $250,000 in excess thereof (or, if the then aggregate Available Term
Commitments are less than $1,000,000, such lesser amount) and (B) in the case of
Eurodollar Loans, $1,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Term Lender
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thereof. Each Term Lender will, subject to the terms and conditions hereof, make
the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of the Funding Office
with the aggregate of the amounts made available to the Administrative Agent by
the Term Lenders and in like funds as received by the Administrative Agent.
2.3 Repayment of Term Loans. The Term Loan of each Term Lender
shall be repaid in 20 consecutive quarterly installments, commencing on December
31, 2002, and on the last day of each March, June, September and December
thereafter to and including September 30, 2007, each of which shall be in an
amount equal to such Lender's Term Percentage multiplied by the amount set forth
below opposite such installment (provided that, if less than the full amount of
the Term Commitments is actually drawn by the Borrower, then the amount of each
such installment shall be proportionately reduced):
Installment Number Principal Amount of Installment
------------------ -------------------------------
1-8 $2,000,000
9-12 $4,000,000
13-20 $6,000,000
2.4 Revolving Commitments. (a) Subject to the terms and
conditions hereof, each Revolving Lender severally agrees to make revolving
credit loans ("Revolving Loans") to the Borrower from time to time during the
Revolving Commitment Period in an aggregate principal amount at any one time
outstanding which does not exceed the amount of such Lender's Revolving
Commitment. During the Revolving Commitment Period the Borrower may use the
Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof.
The Revolving Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.5 and 2.10.
(b) The Borrower shall repay all outstanding Revolving Loans
on the Termination Date.
2.5 Procedure for Revolving Loan Borrowing. The Borrower may
borrow under the Revolving Commitments during the Revolving Commitment Period on
any Business Day, provided that the Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 12:00 Noon, New York City time, (a) three Business Days prior to the
requested Borrowing Date, in the case of Eurodollar Loans, or (b) one Business
Day prior to the requested Borrowing Date, in the case of ABR Loans), specifying
(i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans, the respective amounts
of each such Type of Loan and the respective lengths of the initial Interest
Period therefor. Any Revolving Loans made on the
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Closing Date shall initially be ABR Loans. Each borrowing under the Revolving
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$1,000,000 or a whole multiple of $250,000 in excess thereof (or, if the then
aggregate Available Revolving Commitments are less than $1,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole multiple
of $1,000,000 in excess thereof. Upon receipt of any such notice from the
Borrower, the Administrative Agent shall promptly notify each Revolving Lender
thereof. Each Revolving Lender will, subject to the terms and conditions hereof,
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to the Borrower by the Administrative
Agent crediting the account of the Borrower on the books of the Funding Office
with the aggregate of the amounts made available to the Administrative Agent by
the Revolving Lenders and in like funds as received by the Administrative Agent.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Lender a commitment
fee for the period from and including the Closing Date to the last day of the
Revolving Commitment Period, computed at the Revolving Commitment Fee Rate on
the average daily amount of the Available Revolving Commitment of such Lender
during the period for which payment is made, payable quarterly in arrears on the
last day of each March, June, September and December and on the Termination
Date, commencing on the first of such dates to occur after the Closing Date.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Term Lender a commitment fee for the period from and
including the Closing Date to the last day of the Term Commitment Period,
computed at the Term Commitment Fee Rate on the average daily amount of the
Available Term Commitment of such Lender during the period for which payment is
made, payable quarterly in arrears on the last day of each March, June,
September and December and on the last day of the Term Commitment Period,
commencing on the first of such dates to occur after the Closing Date.
(c) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.7 Termination and Reduction of Commitments. (a) The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Revolving Commitments or, from time to
time, to reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans made on the
effective date thereof, the aggregate outstanding principal amount of Revolving
Loans would exceed the Total Revolving Commitments. Any such reduction shall be
in an amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Revolving Commitments then in effect.
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(b) On June 30, 2007, the Revolving Commitments then in effect
automatically shall be reduced permanently by $4,000,000. Such reduction shall
be accompanied by prepayment of the Revolving Loans to the extent, if any, that
the aggregate outstanding principal amount of the Revolving Loans exceeds the
amount of the Total Revolving Commitments as so reduced. The application of any
prepayment pursuant to this Section 2.7 shall be made, first, to ABR Loans and,
second, to Eurodollar Loans. Each prepayment of Revolving Loans that are
Eurodollar Loans under this Section 2.7 shall be accompanied by accrued interest
to the date of such prepayment on the amount prepaid.
(c) At any time prior to the end of the Term Commitment
Period, the Borrower shall have the right, upon not less than three Business
Days' notice to the Administrative Agent, to terminate the Available Term
Commitments then in effect or, from time to time, to reduce the amount of the
Available Term Commitments then in effect. Any such reduction shall be in an
amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the Available Term Commitments then in effect.
2.8 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the
Borrower shall also pay any amounts owing pursuant to Section 2.18. Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (except in
the case of Revolving Loans that are ABR Loans) accrued interest to such date on
the amount prepaid. Partial prepayments of Term Loans and Revolving Loans shall
be in an aggregate principal amount of $1,000,000 or a whole multiple thereof.
2.9 Mandatory Prepayments and Commitment Reductions. (a) If
any Capital Stock or Indebtedness shall be issued or incurred by the Borrower or
any of its Subsidiaries (excluding any Capital Stock issued to provide the
Additional Capital and any Indebtedness incurred in accordance with Section
6.2), an amount equal to (i) in the case of issuances of Capital Stock, 50%, and
(ii) in the case of incurrences of Indebtedness, 100%, of the Net Cash Proceeds
thereof shall be applied on the date of such issuance or incurrence toward the
prepayment of the Term Loans and the reduction of the Term Commitments and the
Revolving Commitments as set forth in Section 2.9(d).
(b) If on any date during any of its fiscal years the Borrower
or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale
or Recovery Event in an amount (i) which, when added to the aggregate amount of
Net Cash Proceeds from Asset Sales and Recovery Events during such fiscal year,
exceeds $250,000 or (ii) which, when added to the aggregate amount of Net Cash
Proceeds from Asset Sales and Recovery Events received subsequent to the date
hereof, exceeds $500,000, then, unless a Reinvestment Notice shall be
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delivered in respect thereof, such excess Net Cash Proceeds (or if, as a result
of such Asset Sale or Recovery Event, excess Net Cash Proceeds would exist under
both clauses (i) and (ii) above, the provisions of this paragraph (b) shall be
applicable to the greater of such excess Net Cash Proceeds amounts) shall be
applied on such date toward the prepayment of the Term Loans and the reduction
of the Term Commitments and the Revolving Commitments as set forth in Section
2.9(d); provided, that, notwithstanding the foregoing, (i) the aggregate Net
Cash Proceeds of Recovery Events that may be excluded from the foregoing
requirement pursuant to a Reinvestment Notice shall not exceed $7,500,000 in any
fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an
amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans and
the reduction of the Term Commitments and the Revolving Commitments as set forth
in Section 2.9(d).
(c) If, for any fiscal year of the Borrower, commencing with
the fiscal year ending December 31, 2003, there shall be Excess Cash Flow, the
Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of
such Excess Cash Flow toward the prepayment of the Term Loans and the reduction
of the Term Commitments and the Revolving Commitments as set forth in Section
2.9(d). Each such prepayment and commitment reduction shall be made on a date
(an "Excess Cash Flow Application Date") no later than five days after the
earlier of (i) the date on which the financial statements of the Borrower
referred to in Section 5.1(a), for the fiscal year with respect to which such
prepayment is made, are required to be delivered to the Lenders and (ii) the
date such financial statements are actually delivered.
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 2.9 shall be applied, first, to
reduce permanently the then unused Term Commitments, second, to prepay the Term
Loans, and third, to reduce permanently the Revolving Commitments. Any such
reduction of the Revolving Commitments shall be accompanied by prepayment of the
Revolving Loans to the extent, if any, that the aggregate outstanding principal
amount of the Revolving Loans exceeds the amount of the Total Revolving
Commitments as so reduced. The application of any prepayment pursuant to Section
2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each
prepayment of the Loans under Section 2.9 (except in the case of Revolving Loans
that are ABR Loans) shall be accompanied by accrued interest to the date of such
prepayment on the amount prepaid.
2.10 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent irrevocable notice of such election (which notice must be
received by the Administrative Agent prior to 11:00 A.M., New York City time,
three Business Days prior to the requested conversion date), provided that any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto. The Borrower may elect from time to time
to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent at
least three Business Days' prior irrevocable notice of such election (which
notice shall specify the length of the initial Interest Period therefor),
provided that no ABR Loan under a particular Facility may be converted into a
Eurodollar Loan when any Event of Default has occurred and is continuing and the
Administrative Agent or the Majority Facility Lenders in respect of such
Facility have determined
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in its or their sole discretion not to permit such conversions. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan under a particular Facility may be
continued as such when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Majority Facility Lenders in respect of such
Facility have determined in its or their sole discretion not to permit such
continuations, and provided, further, that if such continuation is not permitted
pursuant to the preceding proviso such Loans shall be automatically converted to
ABR Loans on the last day of such then expiring Interest Period; and provided,
further, that if the Borrower shall fail to give any required notice as
described above in this paragraph, such Loans shall be automatically continued
as Eurodollar Loans having an Interest Period of one month. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof.
2.11 Limitations on Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $1,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan shall not be paid when due (whether at the stated maturity, by acceleration
or otherwise), all outstanding Loans (whether or not overdue) shall bear
interest at a rate per annum equal to the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus 2%,
and (ii) if all or a portion of any interest payable on any Loan or any
commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall, to the extent not prohibited by applicable law, bear interest at a
rate per annum equal to the rate then applicable to ABR Loans under the relevant
Facility plus 2% (or, in the case of any such other amounts that do not relate
to a particular Facility, the rate then applicable to ABR Loans under the
Revolving Facility plus 2%), in each case, with respect to clauses (i) and (ii)
above, from the date of such non-payment until such amount is paid in full (as
well after as before judgment).
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(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.12(a).
2.14 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to ABR
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans under the relevant Facility
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shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Each borrowing by
the Borrower from the Lenders hereunder, each payment by the Borrower on account
of any commitment fee and any reduction of the Commitments of the Lenders shall
be made pro rata according to the respective Term Percentages or Revolving
Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Lenders. The amount of each principal prepayment of the Term
Loans shall be applied to reduce the then remaining installments of the Term
Loans in inverse order of maturity. Amounts prepaid on account of the Term Loans
may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders.
(d) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
(e) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the
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Administrative Agent. A certificate of the Administrative Agent submitted to any
Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall also be entitled to recover such amount with interest thereon at the rate
per annum applicable to ABR Loans under the relevant Facility, on demand, from
the Borrower.
(f) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.16 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority
applicable to such Lender made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement or any Eurodollar Loan
made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered
by Section 2.17 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against
assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or
any other acquisition of funds by, any office of such Lender that
is not otherwise included in the determination of the Eurodollar
Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall pay
such Lender, within fifteen (15) days following such Lender's demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, within fifteen (15) days after submission
by such Lender to the Borrower (with a copy to the Administrative Agent) of a
written request therefor, the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction; provided
that the Borrower shall not be required to compensate a Lender pursuant to this
paragraph for any amounts incurred more than six months prior to the date that
such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy to
the Administrative Agent) shall constitute prima facie evidence of such
additional amounts payable, absent manifest error. The obligations of the
Borrower pursuant to this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
2.17 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
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requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
the Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, the Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit G and a Form W-8, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on
all payments by the Borrower under this Agreement and the other Loan Documents.
Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Agreement (or, in the case of any Participant, on or
before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S.
Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it
determines that it is no longer in a position to provide any previously
delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any
other provision of this paragraph, a Non-U.S. Lender shall not be required to
deliver any form pursuant to this paragraph that such Non-U.S. Lender is not
legally able to deliver.
(e) A Lender that is entitled to an exemption from or
reduction of non-U.S. withholding tax under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to
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the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Borrower, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and deliver
such documentation and in such Lender's judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
(f) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. A certificate as to any
amounts payable pursuant to this Section submitted to the Borrower by any Lender
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.19 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.16 or 2.17(a).
2.20 Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.16 or 2.17(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution;
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provided that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time
of such replacement, (iii) prior to any such replacement, such Lender shall have
taken no action under Section 2.19 so as to eliminate the continued need for
payment of amounts owing pursuant to Section 2.16 or 2.17(a), (iv) the
replacement financial institution shall purchase, at par (or at such lesser
price as such Lender and the replacement financial institution may agree), all
Loans and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.18 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 9.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time as
such replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.16 or 2.17(a), as the case may
be, and (ix) any such replacement shall not be deemed to be a waiver of any
rights that the Borrower, the Administrative Agent or any other Lender shall
have against the replaced Lender.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter
into this Agreement and to make the Loans, the Parent and the Borrower hereby
jointly and severally represent and warrant to the Administrative Agent and each
Lender that:
3.1 Financial Condition. (a) The unaudited pro forma
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as
at July 31, 1999 (including the notes thereto) (the "Pro Forma Balance Sheet"),
copies of which have heretofore been furnished to each Lender, has been prepared
giving effect (as if such events had occurred on such date) to (i) the
Investments in the Borrower to be made on the Closing Date and (ii) the payment
of fees and expenses in connection with the foregoing. The Pro Forma Balance
Sheet has been prepared based on the best information available to the Borrower
as of the date of delivery thereof, and presents fairly on a pro forma basis the
estimated financial position of Borrower and its consolidated Subsidiaries as at
July 31, 1999, assuming that the events specified in the preceding sentence had
actually occurred at such date.
(b) The audited consolidated balance sheets of the Parent and
its Subsidiaries as at December 31, 1998, and the related consolidated
statements of income and of cash flows for the fiscal year ended on such date,
reported on by and accompanied by an unqualified report from KPMG, present
fairly, in accordance with GAAP, the consolidated financial condition of the
Parent and its Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the fiscal year then ended. The
unaudited consolidated balance sheet of the Parent and its Subsidiaries as at
July 31, 1999, and the related unaudited consolidated statements of income and
cash flows for the seven-month period ended on such date, present fairly, in
accordance with GAAP, the consolidated financial condition of the Parent and its
Subsidiaries as at such date, and the consolidated results of its operations and
its consolidated
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cash flows for the six-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Parent, the Borrower and its
Subsidiaries do not have any material Guarantee Obligations (excluding the
Loans), contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 1998 to and
including the date hereof there has been no Disposition by the Parent, the
Borrower or any of its Subsidiaries of any material part of its business or
property.
3.2 No Change. Since July 31, 1999, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
3.3 Corporate Existence; Compliance with Law. Each of the
Parent, the Borrower and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, (b) has the corporate power and authority, and the legal right, to
own and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except where the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect and (d) is in
compliance with all Requirements of Law except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations.
Each Loan Party has the corporate power and authority, and the legal right, to
make, deliver and perform the Loan Documents to which it is a party and, in the
case of the Borrower, to borrow hereunder. Each Loan Party has taken all
necessary corporate action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of this Agreement or any of the Loan
Documents, except (i) consents, authorizations, filings and notices described in
Schedule 3.4 and (ii) the filings referred to in Section 3.19. Each Loan
Document has been duly executed and delivered on behalf of each Loan Party party
thereto. This Agreement constitutes, and each other Loan Document upon execution
will constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles, including
concepts of reasonableness, materiality, good faith and fair dealing and the
possible unavailability of specific performance, injunctive relief or other
equitable remedies (whether enforcement is sought by proceedings in equity or at
law).
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3.5 No Legal Bar; Regulatory Authorizations. (a) The
execution, delivery and performance of this Agreement and the other Loan
Documents, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or any Contractual Obligation of the Parent, the
Borrower or any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Security Documents). Compliance by the
Borrower and its Subsidiaries with any applicable Requirement of Law or
Contractual Obligation could not reasonably be expected to have a Material
Adverse Effect.
(b) Each of the Parent, the Borrower and its Subsidiaries has
obtained all Regulatory Authorizations necessary to carry out its business and
operations as presently conducted, except to the extent the failure to obtain
such Regulatory Authorizations, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Each Communications
License held by each Loan Party on the date hereof was duly and validly issued
by the FCC, relevant PUC or other relevant Governmental Authority pursuant to
procedures that materially comply with all applicable requirements of all
applicable federal, state and local laws and is in full force and effect except
to the extent the failure thereof to be in full force and effect, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. None of the Loan Parties has any knowledge of the occurrence of any
event or the existence of any circumstance which, in the reasonable judgment of
such Loan Party, is likely to result in the revocation, suspension, non-renewal
or adverse modification of any material Communications License.
3.6 Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of the Parent or the Borrower, threatened by or against the Parent,
the Borrower or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.
3.7 No Default. Neither the Parent, the Borrower nor any of
its Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Parent, the
Borrower and its Subsidiaries has title in fee simple to, or a valid leasehold
interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, and none of such property is subject to any
Lien except as permitted by Section 6.3.
3.9 Intellectual Property. The Parent, the Borrower and each
of its Subsidiaries owns, or is licensed to use, all Intellectual Property
necessary for the conduct of its business as currently conducted. No material
claim has been asserted and is pending by any Person
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challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does the Parent or the
Borrower know of any valid basis for any such claim. The use of Intellectual
Property by the Parent, the Borrower and its Subsidiaries does not infringe on
the rights of any Person in any material respect.
3.10 Taxes. Each of the Parent, the Borrower and each of its
Subsidiaries has filed or caused to be filed all Federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of that are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Parent, the Borrower or its Subsidiaries, as the
case may be); no tax Lien has been filed, and, to the knowledge of the Parent
and the Borrower, no claim is being asserted, with respect to any such tax, fee
or other charge.
3.11 Federal Regulations. No part of the proceeds of any Loans
will be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
3.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against the Parent, the Borrower or any of its
Subsidiaries pending or, to the knowledge of the Parent or the Borrower,
threatened; (b) hours worked by and payment made to employees of the Parent, the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters; and (c) all payments due from the Parent, the Borrower or any of its
Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of the Parent, the Borrower or the
relevant Subsidiary.
3.13 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA) has occurred during the five-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan, and each Plan and, to the knowledge of the Parent and Borrower,
each Multiemployer Plan, has complied in all material respects with the
applicable provisions of ERISA and the Code. No termination of a Single Employer
Plan has occurred, and no Lien in favor of the PBGC or a Plan has arisen, during
such five-year period. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans) did
not, as of the last annual valuation date prior to the date on which this
representation is made or deemed made, exceed the value of the assets of such
Plan allocable to such accrued benefits by a material amount. Neither the
Borrower nor any
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Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and neither the Borrower nor any Commonly
Controlled Entity would become subject to any material liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw completely
from all Multiemployer Plans as of the valuation date most closely preceding the
date on which this representation is made or deemed made. No such Multiemployer
Plan is in Reorganization or Insolvent.
3.14 Investment Company Act. No Loan Party is an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
3.15 Subsidiaries. Except as disclosed to the Administrative
Agent (and the Administrative Agent will then disclose to the Lenders) by the
Borrower in writing from time to time after the Closing Date, (a) Schedule 3.15
sets forth the name and jurisdiction of incorporation of each Subsidiary and, as
to each such Subsidiary, the percentage of each class of Capital Stock owned by
any Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees or directors and directors' qualifying shares) of
any nature relating to any Capital Stock of the Borrower or any Subsidiary,
except as created by the Loan Documents.
3.16 Use of Proceeds. The proceeds of the Loans shall be used
by the Borrower to finance (a) Capital Expenditures as permitted by Section 6.7,
(b) transaction fees and expenses incurred in connection with this Agreement and
the transactions contemplated hereby and (c) working capital and other general
corporate purposes, including Permitted Acquisitions; provided, however, that
proceeds used to finance switch-related soft costs (including installation,
delivery and engineering costs, but excluding switch software) shall not exceed
16% of the cost of the related switch.
3.17 Environmental Matters. Except as, in the aggregate,
could not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by
the Parent, the Borrower or any of its Subsidiaries (the "Properties")
do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could
give rise to liability under, any Environmental Law;
(b) neither the Parent, the Borrower nor any of its
Subsidiaries has received or is aware of any notice of violation,
alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the business operated by the
Parent, the Borrower or any of its Subsidiaries (the "Business"), nor
does the Parent or the Borrower have knowledge or reason to believe
that any such notice will be received or is being threatened;
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(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location that could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of the Parent and the Borrower,
threatened, under any Environmental Law to which the Parent, the
Borrower or any Subsidiary is or will be named as a party with respect
to the Properties or the Business, nor are there any consent decrees or
other decrees, consent orders, administrative orders or other orders,
or other administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of the Parent, the Borrower
or any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with
all applicable Environmental Laws, and there is no contamination at,
under or on the Properties or violation of any Environmental Law with
respect to the Properties or the Business; and
(g) neither the Parent, the Borrower nor any of its
Subsidiaries has assumed any liability of any other Person under
Environmental Laws.
3.18 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document or any other document,
certificate or statement furnished by or on behalf of any Loan Party to the
Administrative Agent or the Lenders, or any of them, for use in connection with
the transactions contemplated by this Agreement or the other Loan Documents,
contained as of the date such statement, information, document or certificate
was so furnished, any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions
believed the Borrower to be reasonable at the time made, it being recognized by
the Lenders that such financial information as it relates to future events is
not to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount. There is no fact known to any Loan Party
that could reasonably be expected to have a Material Adverse Effect that has not
been expressly disclosed herein, in the other Loan Documents or in any other
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documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and
by the other Loan Documents.
3.19 Security Documents. (a) The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock described in the Guarantee and Collateral Agreement, when stock
certificates representing such Pledged Stock are delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guarantee and
Collateral Agreement, when financing statements and other filings specified on
Schedule 3.19(a) in appropriate form are filed in the offices specified on
Schedule 3.19(a), the Guarantee and Collateral Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the Loan Parties in such Collateral (excluding unregistered copyrightable
works) and the proceeds thereof, as security for the Obligations (as defined in
the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person (except, in the case of Collateral other than Pledged
Stock, Liens permitted by Section 6.3).
(b) Each of the Mortgages (if any) is effective to create in
favor of the Administrative Agent, for the benefit of the Lenders, a legal,
valid and enforceable Lien on the Property described therein and proceeds
thereof, and when such Mortgages, together with any applicable UCC-1 forms
related to fixtures, are filed in the offices specified in the applicable
Mortgage Recording Certificate, each such Mortgage shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Property and the proceeds thereof, as security for the
Obligations (as defined in the relevant Mortgage), in each case prior and
superior in right to any other Person. As of the Closing Date, neither the
Borrower nor any of its Subsidiaries owns in fee simple any real property.
3.20 Solvency. Each Loan Party is, and after giving effect to
the incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
3.21 Year 2000 Matters. Each of the Parent, the Borrower and
its Subsidiaries (a) has received representations and warranties made to the
Parent, the Borrower and its Subsidiaries by equipment and software vendors
relating to year 2000 issues concerning such equipment and software vendors'
products, (b) has tested its respective network equipment and Operations Support
Systems, and (c) reasonably believes that such network equipment and Operations
Support Systems will (i) process calendar dates falling on or after January 1,
2000 with substantially the same functionality as such network equipment and
Operations Support Systems process calendar dates falling on or before December
31, 1999 and (ii) provide substantially the same functionality with respect to
the introduction of records containing dates falling on or after January 1,
2000, as such equipment, software and systems provide with respect to the
introduction of records containing dates falling on or before December 31, 1999.
Each of the Parent, the Borrower and its Subsidiaries will continue to monitor
the performance of its network equipment and Operations Support Systems and
those of its third-party constituents with a view towards identifying and
resolving any year 2000 issues.
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3.22 Regulation H. No Mortgage encumbers improved real
property that is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968.
3.23 Certain Documents. The Borrower has delivered to each
Lender complete and correct copies of the Business Plan, the Management
Agreement and the Stock Agreements, including any amendments, supplements or
modifications with respect to any of the foregoing.
3.24 Venture Investors. Schedule 1.1B sets forth a complete
and correct list of all holders of the Capital Stock of the Parent on the date
hereof.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Effectiveness. The effectiveness of the
obligations of the Lenders to make Loans under this Agreement and the agreement
of each Lender to make the initial Loans requested to be made by it is subject
to the satisfaction, on or before November , 1999, of the following conditions
precedent (the date of effectiveness, the "Closing Date"):
(a) Credit Agreement; Guarantee and Collateral Agreement;
Capital Call Agreement; Lockbox Agreement. The Administrative Agent
shall have received (i) this Agreement, executed and delivered by the
Administrative Agent, the Parent, the Borrower and each Person listed
on Schedule 1.1A, (ii) the Guarantee and Collateral Agreement, executed
and delivered by the Parent, the Borrower and each Subsidiary, (iii)
the Capital Call Agreement, executed and delivered by the Parent, the
Borrower and the Administrative Agent, and (iv) the Lockbox Agreement,
executed and delivered by the Borrower, the Administrative Agent and
the lockbox bank thereunder.
(b) Initial Capital Contributions. The Parent shall have
contributed to the capital of (or expended on behalf of) the Borrower
and its Subsidiaries cash and/or Cash Equivalents and/or other assets
in an aggregate amount equal to at least $53,000,000 in a manner and on
terms and conditions reasonably satisfactory to the Lenders (the
"Initial Capital Contributions"), provided that (i) any such other
assets so contributed shall be valued at the book value thereof as
reflected on the consolidated financial statements of the Parent, so
long as such valuation is reasonably acceptable to the Lenders, and
(ii) any such expenditures by the Parent on behalf of the Borrower and
its Subsidiaries shall be credited towards contribution to the Borrower
of Initial Capital Contributions only in amounts reflected as losses on
the consolidated financial statements of the Parent, so long as such
amounts are reasonably acceptable to the Lenders.
(c) Business Plan; Management Agreement. The Lenders shall
have received certified copies of (i) the 24-market development plan of
the Borrower as contained in the memorandum dated September 13, 1999
(the "Business Plan") and the individual business plans for St. Louis,
Missouri; Kansas City, Missouri and Kansas; Springfield, Missouri;
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Wichita, Kansas; Tulsa, Oklahoma; Oklahoma City, Oklahoma; and Little
Rock, Arkansas and (ii) the management agreement between the Borrower
and the Parent relating to, among other things, the Parent's delivery
of services to the Borrower and its Subsidiaries via the Parent's
network operations control center (as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 6.9 hereto, the "Management Agreement"), which agreement shall
be in substantially the form of Exhibit I.
(d) Stock Agreements. The Administrative Agent shall have
received a certificate of a Responsible Officer of the Parent (i)
attaching a certified copy of each of (A) the Shareholders Agreement,
dated as of August 14, 1998, as amended as of November 18, 1998 (as the
same may be amended, supplemented or otherwise modified from time to
time in accordance with Section 6.9, the "Shareholders Agreement"), (B)
the Stockholders' Agreement, dated as of November 18, 1998, as amended
as of December 14, 1998 and July 20, 1999 (as the same may be amended,
supplemented or otherwise modified from time to time in accordance with
Section 6.9, the "Venture Stockholders Agreement") and (C) the
Securities Purchase Agreement dated as of November 18, 1998, as amended
as of December 14, 1998, and the related Registration Rights Agreement,
dated as of November 18, 1998 (as the same may be amended, supplemented
or otherwise modified from time to time in accordance with Section 6.9,
the "Securities Purchase Agreement"; the Securities Purchase Agreement;
the Shareholders Agreement and the Venture Stockholders Agreement,
collectively, the "Stock Agreements") and (ii) confirming that none of
the Stock Agreements has been amended, waived or otherwise modified in
any manner that, in the reasonable discretion of the Required Lenders,
could reasonably be expected to be materially adverse to the interests
of the Lenders or that would not be permitted by Section 6.9.
(e) Subordination of Vendor Contracts. The Administrative
Agent shall have received evidence, in form and substance satisfactory
to it, that each vendor contract requiring payments in excess of
$1,000,000 in the aggregate during the term of such contract to which
the Borrower or any of its Subsidiaries is a party shall have been
modified with respect to subordination of the applicable vendor's Liens
to the Liens securing the Obligations in a manner reasonably
satisfactory to the Lenders to the extent such vendor's Liens are not
otherwise permitted pursuant to Section 6.3(f).
(f) Amendment of Software Contracts. The Administrative Agent
shall have received evidence, in form and substance satisfactory to it,
that each software vendor contract with respect to any aspect of the
Operations Support Systems of the Parent and its Subsidiaries to which
the Parent is a party shall have been modified, in a manner reasonably
satisfactory to the Lenders, so as to add the Borrower and its
Subsidiaries as parties thereto, with the same rights as the Parent
thereunder.
(g) Completed Markets. The Administrative Agent shall have
received evidence, in form and substance satisfactory to it, that the
Borrower shall have achieved at least three Completed Markets.
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(h) Approvals. The Administrative Agent shall have received
evidence, in form and substance satisfactory to it, that all
governmental and third party approvals (including landlords' and other
consents) reasonably necessary or, in the reasonable discretion of the
Administrative Agent, advisable in connection with the financing
contemplated hereby and the operations of the Parent, the Borrower and
its Subsidiaries shall have been obtained and be in full force and
effect.
(i) Lien Searches. The Administrative Agent shall have
received the results of a recent lien search in each of the
jurisdictions where assets of the Loan Parties are located, and such
search shall reveal no liens on any of the assets of the Borrower or
its Subsidiaries except for liens permitted by Section 6.3 or
discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.
(j) Fees. The Lenders and the Administrative Agent shall have
received all fees required to be paid, and all expenses for which
invoices have been presented (including the reasonable fees and
expenses of legal counsel), on or before the Closing Date.
(k) Closing and Secretary's Certificates. The Administrative
Agent shall have received, with a counterpart for each Lender, (i) a
certificate of each Loan Party, dated the Closing Date, substantially
in the form of E-1 and (ii) a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit E-2, with
appropriate insertions and attachments.
(l) Legal Opinions. The Administrative Agent shall have
received the following executed legal opinions:
(i) the legal opinion of ▇▇▇▇▇ ▇▇▇▇ LLP, special
counsel to the Borrower and its Subsidiaries, in substantially
the form and substance of Exhibit J; and
(ii) the legal opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
special FCC counsel to the Borrower and its Subsidiaries, in
substantially the form and substance of Exhibit K.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(m) Pledged Stock; Stock Powers; Pledged Notes. The
Administrative Agent shall have received (i) the certificates
representing the shares of Capital Stock of the Borrower and its
Subsidiaries pledged pursuant to the Guarantee and Collateral
Agreement, together with an undated stock power for each such
certificate executed in blank by a duly authorized officer of the
pledgor thereof, and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement
endorsed (without recourse or warranty of any kind or nature whatsoever
other than those provided for in the Guarantee and Collateral
Agreement) in blank (or accompanied by an executed transfer form in
blank) by the pledgor thereof.
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(n) Filings, Registrations and Recordings. Each document
(including any Uniform Commercial Code financing statement and, in any
case, including UCC-1 forms related to fixtures on the premises listed
on Schedule 4.2) required by the Security Documents or under law or
reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the
Administrative Agent, for the benefit of the Lenders, a perfected Lien
on the Collateral described therein (excluding unregistered
copyrightable works), prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section 6.3),
shall be in proper form for filing, registration or recordation.
(o) Insurance. The Administrative Agent shall have received
insurance certificates satisfying the requirements of Section 5.3 of
the Guarantee and Collateral Agreement.
4.2 Other Conditions. The effectiveness of the obligations of
the Lenders to make Term Loans in the aggregate in excess of $35,000,000 under
this Agreement and the agreement of each Lender to make any such Term Loans in
such excess amount requested to be made by it is subject to the Borrower having
obtained a duly executed Landlord Waiver and Consent from the landlords of at
least four of the premises listed on Schedule 4.2 (it being understood and
agreed by the Borrower that the foregoing condition precedent shall not be
deemed to have been satisfied by any compliance with the terms and conditions of
Section 5.12 in the absence of the Borrower's having obtained a duly executed
Landlord Waiver and Consent from the landlords of at least four of the premises
listed on Schedule 4.2).
4.3 Conditions to Each Loan. The agreement of each Lender to
make any Loan requested to be made by it on any date (including its initial
Loan) is subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date, except to the
extent such representations and warranties relate to a specific earlier
date, in which case such representations and warranties shall have been
true and correct in all material respects on and as of such earlier
date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
Each borrowing by the Borrower hereunder and the effectiveness of this Agreement
under Section 4.1 shall constitute a representation and warranty by the Borrower
as of the date of such borrowing or such initial effectiveness under Section
4.1, as the case may be, that the conditions contained in this Section 4.3 have
been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
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The Parent and the Borrower hereby jointly and severally agree
that, so long as the Commitments remain in effect or any Loan or other amount is
owing to any Lender or the Administrative Agent hereunder:
5.1 Financial Statements. The Parent will furnish to the
Administrative Agent (which will to each Lender):
(a) (i) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Parent, a copy of the audited
consolidated and unaudited consolidating balance sheet of the Parent
and its consolidated Subsidiaries as at the end of such year and the
related audited consolidated and unaudited consolidating statements of
income and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without
a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by KPMG LLP ("KPMG") or other
independent certified public accountants of nationally recognized
standing;
(ii) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated and unaudited consolidating balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year
and the related audited consolidated and unaudited consolidating
statements of income and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
KPMG or other independent certified public accountants of nationally
recognized standing;
(b) (i) as soon as available, but in any event not later than
45 days after the end of each of the first three quarterly periods of
each fiscal year of the Parent, the unaudited consolidated and
consolidating balance sheet of the Parent and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated and consolidating statements of income and of cash flows
for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in comparative form the
figures for the corresponding period from the previous year, certified
by a Responsible Officer of the Parent as being fairly stated in all
material respects (subject to normal year-end audit adjustments) in
accordance with GAAP;
(ii) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated and
consolidating balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated and consolidating statements of income and of cash flows
for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in comparative form the
figures for the corresponding period from the previous year, certified
by a Responsible Officer of the Borrower as being fairly stated in all
material respects (subject to normal year-end audit adjustments) in
accordance with GAAP; and
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(c) as soon as available, but in any event not later than 45
days after the end of each month occurring during each fiscal year of
the Borrower (other than the third, sixth, ninth and twelfth such
month), the unaudited consolidated and consolidating balance sheets of
the Borrower and its Subsidiaries as at the end of such month and the
related unaudited consolidated and consolidating statements of income
and of cash flows for such month and the portion of the fiscal year
through the end of such month, setting forth in each case in
comparative form the figures for the corresponding period from the
previous year, certified by a Responsible Officer of the Borrower as
being fairly stated in all material respects (subject to normal
year-end audit adjustments) in accordance with GAAP.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
(except, in the case of unaudited quarterly and monthly statements, for
accompanying notes thereto) applied consistently throughout the periods
reflected therein and with prior periods (except as approved by such accountants
or officer, as the case may be, and disclosed therein).
5.2 Certificates; Other Information. The Parent will furnish
to the Administrative Agent and each Lender (or, in the case of clause (h), to
the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 5.1, (i) a certificate of a Responsible Officer of
the Parent or the Borrower, as the case may be, stating in substance
that, to the best of each such Responsible Officer's knowledge, each
Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Loan Documents to which it is
a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and (ii) in the case
of quarterly or annual financial statements, (x) a Compliance
Certificate containing all information and calculations necessary for
determining compliance by the Parent, the Borrower and its Subsidiaries
with the provisions of this Agreement referred to therein as of the
last day of the fiscal quarter or fiscal year of the Borrower, as the
case may be, and (y) to the extent not previously disclosed to the
Administrative Agent, a listing of any county or state within the
United States where any Loan Party keeps any material item of inventory
or equipment and of any Intellectual Property acquired by any Loan
Party since the date of the most recent list delivered pursuant to this
clause (y) (or, in the case of the first such list so delivered, since
the Closing Date);
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(c) as soon as available, and in any event no later than 30
days after the end of each fiscal year, a detailed consolidated budget
for the Borrower and its Subsidiaries for each of the twelve months
comprising the succeeding fiscal year;
(d) as soon as available, and in any event no later than 45
days after the end of the second and fourth quarters of each fiscal
year, a projected consolidated balance sheet of the Borrower and its
Subsidiaries as of the last day of each fiscal year during the term of
this Agreement, the related consolidated statements of projected cash
flow, projected changes in financial position and projected income for
the twelve-month period (or, in the case of the first such period
following the second quarter of any fiscal year, the six-month period)
ending on such last day and a description of the underlying assumptions
applicable thereto (collectively, the "Projections"), which Projections
shall in each case be accompanied by a certificate of a Responsible
Officer of the Borrower stating that such Projections have been
prepared in good faith based on estimates, information and assumptions
believed by the Borrower to be reasonable; provided, however, that
unless any such Projections would describe a material adverse change
(relative to the Borrower and its Subsidiaries, taken as a whole) from
the then most recent Projections furnished to the Administrative Agent,
Borrower shall only be obligated to furnish Projections pursuant to
this paragraph within 45 days after delivery of financial statements as
of the end of the fourth quarter of each fiscal year;
(e) as soon as available, and in any event no later than 45
days after the end of each fiscal quarter, summary Market information,
substantially in the form of Exhibit H, as of the end of such fiscal
quarter;
(f) within five days after the same are sent, copies of all
financial statements and reports that the Parent or the Borrower sends
to the holders of any other class of its debt securities or any class
of its public equity securities and, within five days after the same
are filed, copies of all financial statements and reports that the
Parent or the Borrower may make to, or file with, the SEC;
(g) promptly upon receipt of notice of (i) any forfeiture,
non-renewal, cancellation, termination, revocation, suspension,
impairment or material modification of any material Communications
License held by the Parent, the Borrower or any of its Subsidiaries, or
any notice of default or forfeiture with respect to any such material
Communications License, or (ii) any refusal by the FCC or any PUC to
renew or extend any such material Communications License, a certificate
of a Responsible Officer specifying the nature of such event, the
period of existence thereof, and what action the Parent, the Borrower
or its Subsidiaries, as the case may be, are taking and propose to take
with respect thereto; and
(h) upon reasonable notice and subject to any applicable
confidentiality undertakings of any Loan Party to any third party, such
additional financial and other information as any Lender may from time
to time reasonably request.
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5.3 Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its material
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Borrower and its Subsidiaries.
5.4 Maintenance of Existence; Compliance. The Borrower will,
and will cause each of its Subsidiaries to, (a) (i) preserve, renew and keep in
full force and effect its corporate existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business (including, without limitation, all
Communications Licenses and franchises issued or granted by any Governmental
Authority), except, in each case, as otherwise permitted by Section 6.4 and
except, in the case of clause (ii) above, to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (b)
comply with all Contractual Obligations and Requirements of Law except to the
extent that failure to comply therewith could not, in the aggregate, reasonably
be expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep all property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted and (b) maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks (but including in any event public liability, product liability
and business interruption) as are usually insured against in the same general
area by CLECs, so long as such insurance is commercially available.
5.6 Inspection of Property; Books and Records; Discussions.
(a) The Borrower will, and will cause each of its Subsidiaries to, keep proper
books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at reasonable times
and intervals and, unless a Default or Event of Default shall have occurred and
be continuing (in which circumstances only one day's notice shall be required),
upon not less than five (5) Business Days' prior written notice and to discuss
the business, operations, properties and financial and other condition of the
Parent, the Borrower and its Subsidiaries with officers and employees of the
Parent, the Borrower and its Subsidiaries and with its independent certified
public accountants (provided that any Responsible Officer of the Parent, the
Borrower or any of its Subsidiaries may, if it so desires, be present at and
participate in any such discussion), in each case, subject to any applicable
confidentiality undertakings by the Parent, the Borrower and its Subsidiaries to
third parties.
5.7 Notices. The Parent or the Borrower will promptly give
notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
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(b) the occurrence of any (i) default or event of default
under any Contractual Obligation of the Parent, the Borrower or any of
its Subsidiaries or (ii) litigation, investigation or proceeding that
may exist at any time between the Parent, the Borrower or any of its
Subsidiaries and any Governmental Authority, that in either case, if
not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) the commencement of any litigation or proceeding affecting
the Parent, the Borrower or any of its Subsidiaries in which the amount
of damages sought from the Parent, the Borrower or any Subsidiary is
$1,000,000 or more and not covered by insurance or in which injunctive
or similar relief is sought against the Parent, the Borrower or any of
its Subsidiaries;
(d) the occurrence of any of the following events, as soon as
possible and in any event within 30 days after the Borrower knows or
has reason to know thereof: (i) the occurrence of any Reportable Event
with respect to any Plan, a failure to make any required contribution
to a Plan, the creation of any Lien in favor of the PBGC or a Plan or
any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Borrower or any
Commonly Controlled Entity or any Multiemployer Plan with respect to
the withdrawal from, or the termination, Reorganization or Insolvency
of, any Plan; and
(e) any development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer of the relevant Person setting forth details of the
occurrence referred to therein and stating what action the Parent, the Borrower
or the relevant Subsidiary proposes to take with respect thereto.
5.8 Environmental Laws. (a) The Borrower will, and will cause
each of its Subsidiaries to, comply in all material respects with, and use
reasonable efforts to ensure compliance in all material respects by all tenants
and subtenants, if any, with, all applicable Environmental Laws, and obtain and
comply in all material respects with and maintain, and use reasonable efforts to
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b) The Borrower will, and will cause each of its Subsidiaries
to, conduct and complete all investigations, studies, sampling and testing, and
all remedial, removal and other actions, required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws.
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5.9 Interest Rate Protection. The Borrower will, on or prior
to the second anniversary of the Closing Date, enter into Hedge Agreements to
the extent necessary to provide that at least 50% of the aggregate principal
amount of the Indebtedness of the Borrower and its Subsidiaries is subject to
either a fixed interest rate or interest rate protection, for a period of not
less than three years, which Hedge Agreements shall have terms and conditions
reasonably satisfactory to the Administrative Agent.
5.10 Additional Collateral, etc. The Borrower will, and will
cause each of its Subsidiaries to,
(a) with respect to any property acquired after the Closing
Date by the Borrower or any of its Subsidiaries (other than (x) any property
described in paragraph (b) or (c) below, (y) any property subject to a Lien
expressly permitted by Section 6.3(g) and (z) any property specifically excluded
from the Collateral by the terms of the Guarantee and Collateral Agreement) as
to which the Administrative Agent, for the benefit of the Lenders, does not have
a perfected Lien, promptly (i) execute and deliver to the Administrative Agent
such amendments to the Guarantee and Collateral Agreement or such other
documents as the Administrative Agent deems reasonably necessary or advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a security
interest in such property and (ii) take all other actions reasonably necessary
or advisable to grant to the Administrative Agent, for the benefit of the
Lenders, a perfected first priority security interest in such property,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by
law or as may be reasonably requested by the Administrative Agent.
(b) with respect to any fee interest in any real property
having a value (together with improvements thereof) of at least $1,000,000
acquired after the Closing Date by the Borrower or any of its Subsidiaries, such
Loan Party will promptly (i) execute and deliver a first priority Mortgage, in
favor of the Administrative Agent, for the benefit of the Lenders, covering such
real property, together with a Mortgage Recording Certificate with respect
thereto, (ii) if requested by the Administrative Agent, provide the Lenders with
(x) title and extended coverage insurance covering such real property in an
amount at least equal to the purchase price of such real property (or such other
amount as shall be reasonably specified by the Administrative Agent) as well as
a current ALTA survey thereof, together with a surveyor's certificate and (y)
any tenant consents or estoppels reasonably deemed necessary or advisable by the
Administrative Agent in connection with such mortgage or deed of trust, each of
the foregoing in customary form and substance reasonably satisfactory to the
Administrative Agent and (iii) if reasonably requested by the Administrative
Agent, deliver to the Administrative Agent customary legal opinions relating to
the matters described above, which opinions shall be in form and substance, and
from counsel, reasonably satisfactory to the Administrative Agent.
(c) with respect to any new Subsidiary created or acquired
after the Closing Date by the Borrower or any of its Subsidiaries, such Loan
Party will promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guarantee and Collateral Agreement as the Administrative Agent
deems reasonably necessary or advisable to grant to the Administrative Agent,
for the benefit of the Lenders, a perfected first priority security interest in
the Capital
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Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement, (B) to take such actions as the
Administrative Agent deems reasonably necessary or advisable to grant to the
Administrative Agent for the benefit of the Lenders a perfected first priority
security interest in the Collateral described in the Guarantee and Collateral
Agreement with respect to such new Subsidiary, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by
the Guarantee and Collateral Agreement or by law or as may be requested by the
Administrative Agent and (C) to deliver to the Administrative Agent a
certificate of such Subsidiary, substantially in the form of Exhibit E, with
appropriate insertions and attachments, and (iv) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent customary legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
5.11 24-Market Reporting Requirement. From and after the date
of incurrence by the Parent of any Indebtedness pursuant to Section 6A.2(b), the
Parent and the Borrower will, within forty-five days following the last day of
each fiscal quarter, jointly deliver to the Administrative Agent a certificate
of a Responsible Officer of the Parent setting forth (a) a good-faith estimate
(based upon assumptions included in the Business Plan) of the remaining cost
(the A24-Market Completion Amount"), as of the last day of such fiscal quarter,
to complete the build-out of the 24 markets contemplated by the Business Plan
(the A24-Market Build-Out") and (b) the aggregate amount of cash and Cash
Equivalents held by the Parent and its Subsidiaries as of the last day of such
fiscal quarter.
5.12 Landlord Waivers and Consents. (a) The Borrower will use
its reasonable best efforts to obtain a duly executed Landlord Waiver and
Consent from each of the landlords of the premises listed on Schedule 4.2 (it
being understood that the Borrower will be under no obligation to pay money or
waive any legal rights it may have in order to obtain any such Landlord Waiver
and Consent).
(b) Prior to or concurrently with the Borrower achieving its
ninth Completed Market, the Borrower will, or will cause its relevant Subsidiary
to, obtain a duly executed Landlord Waiver and Consent from the landlord(s) of
at least six of premises then leased by the Borrower or its Subsidiaries.
(c) If, after the Borrower has achieved nine Completed
Markets, the Borrower or any of its Subsidiaries (i) acquires any property
subject to a lease or (ii) leases any property, the Borrower will, or will cause
its relevant Subsidiary to, use its reasonable best efforts to obtain a duly
executed Landlord Waiver and Consent from the landlord(s) of each such newly
acquired or leased property (it being understood that the Borrower will be under
no obligation to pay money or waive any legal rights it may have in order to
obtain any such Landlord Waiver and Consent).
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SECTION 6. NEGATIVE COVENANTS OF THE BORROWER
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Borrower shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Stage 1. Until the earlier of (x) the first time that the
Consolidated Borrower EBITDA shall be greater than zero for any period of two
consecutive fiscal quarters and the Consolidated Borrower Leverage Ratio on the
last day of such period shall be at or below 10.0 to 1.00 and (y) June 30, 2003
(the earlier of the dates specified in clauses (x) and (y), the "Stage 2
Commencement Date"):
(i) Borrower Debt-to-Contributed Capital Ratio.
Permit the Borrower Debt-to-Contributed Capital Ratio as at the last
day of any fiscal quarter of the Borrower to exceed 1.00 to 1.00.
(ii) Quarterly Revenue. Permit the Quarterly
Revenue for any fiscal quarter of the Borrower set forth below to be
less than the amount set forth below opposite such fiscal quarter:
Fiscal Quarter Quarterly Revenue
-------------- -----------------
3/31/00 $1,700,000
6/30/00 3,617,000
9/30/00 6,003,000
12/31/00 9,130,000
3/31/01 12,571,000
6/30/01 16,627,000
9/30/01 21,187,000
12/31/01 26,365,000
3/31/02 31,216,000
6/30/02 36,645,000
9/30/02 42,193,000
12/31/02 47,868,000
(iii) Consolidated Borrower EBITDA. For any fiscal
quarter of the Borrower set forth below, permit the Consolidated
Borrower EBITDA for such fiscal quarter to be less than the amount set
forth below opposite the corresponding number of Completed Markets:
Up to and 10-15 Completed 16-20 20-24
including 9 Markets Completed Completed
Completed Markets Markets
Markets
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12/31/99 $(6,925,000) $(6,925,000) $(6,925,000) $(6,925,000)
03/31/00 $(8,289,000) $(8,289,000) $(8,289,000) $(8,289,000)
06/30/00 $(8,732,000) $(8,732,000) $(8,732,000) $(8,732,000)
09/30/00 $(7,776,000) $(11,108,000) $(11,108,000) $(11,108,000)
12/31/00 $(5,035,000) $(9,867,000) $(9,867,000) $(9,867,000)
03/31/01 $(4,457,000) $(9,701,000) $(10,953,000) $(10,953,000)
06/30/01 $(3,404,000) $(7,767,000) $(10,119,000) $(10,119,000)
09/30/01 $(2,246,000) $(5,860,000) $(8,352,000) $(8,988,000)
12/31/01 $(944,000) $(3,802,000) $(5,617,000) $(8,056,000)
03/31/02 $(186,000) $(2,689,000) $(3,945,000) $(6,081,000)
06/30/02 $563,000 $(1,297,000) $(2,048,000) $(3,454,000)
09/30/02 $1,474,000 $381,000 $190,000 $(814,000)
12/31/02 $2,513,000 $2,135,000 $2,513,000 $1,964,000
(b) Stage 2. From and after the Stage 2 Commencement Date:
(i) Consolidated Borrower Leverage Ratio. Permit the
Consolidated Borrower Leverage Ratio as at the last day of any fiscal
quarter set forth below to exceed the ratio set forth below opposite
such fiscal quarter:
Consolidated Borrower
Fiscal Quarter Leverage Ratio
-------------- --------------
3/31/03 7.00 to 1
6/30/03 5.00 to 1
9/30/03 4.00 to 1
12/31/03 3.00 to 1
3/31/04 and each fiscal 3.00 to 1
quarter end thereafter
(ii) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio for any period of two consecutive
fiscal quarters of the Borrower ending with any fiscal quarter set
forth below to be less than the ratio set forth below opposite such
fiscal quarter:
Consolidated Interest
Fiscal Quarter Coverage Ratio
-------------- --------------
3/31/03 1.50 to 1
6/30/03 1.50 to 1
9/30/03 and each fiscal 2.00 to 1
quarter end thereafter
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(iii) Consolidated Pro Forma Debt Service Coverage
Ratio. Permit the Consolidated Pro Forma Debt Service Coverage Ratio
for any period of two consecutive fiscal quarters of the Borrower
ending with any fiscal quarter set forth below to be less than the
ratio set forth below opposite such fiscal quarter:
Consolidated Pro Forma
Fiscal Quarter Debt Service Coverage Ratio
-------------- ---------------------------
3/31/04 1.00 to 1
6/30/04 1.00 to 1
9/30/04 1.25 to 1
12/31/04 1.25 to 1
3/31/05 and each fiscal 1.50 to 1
quarter end thereafter
6.2 Indebtedness. Create, issue, incur, assume, become
liable in respect of or suffer to any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Wholly Owned Subsidiary to the Borrower or any other Subsidiary;
(c) Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of
the Borrower or any Wholly Owned Subsidiary;
(d) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 6.3(f) in an
aggregate principal amount not to exceed $8,500,000 at any one time
outstanding;
(e) Permitted Borrower Subordinated Indebtedness; and
(f) Hedge Agreements in respect of Indebtedness otherwise
permitted hereby that bears interest at a floating rate, so long as
such agreements are not entered into for speculative purposes.
6.3 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or that are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, as may be required in conformity with
GAAP;
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(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety, customs and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that are not
substantial in amount and that, individually or in the aggregate, do
not materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries;
(f) Liens securing Indebtedness of the Borrower or any other
Subsidiary incurred pursuant to Section 6.2(d) to finance the
acquisition of fixed or capital assets, provided that (i) such Liens
shall be created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness and (iii) the amount of Indebtedness secured thereby is
not increased;
(g) Liens created pursuant to the Security Documents;
(h) any interest or title of a lessor (or sublessor) under any
lease (or sublease) entered into by the Borrower or any other
Subsidiary in the ordinary course of its business and covering only the
assets so leased (or subleased);
(i) judgment Liens with respect to judgments not in excess of
$2,000,000 in the aggregate and with respect to which Lien execution
has been stayed within thirty (30) days by appropriate judicial
proceedings or the posting of an appeal bond or other security; and
(j) statutory and common law landlord's liens under leases to
which the Borrower or any of its Subsidiaries is a party.
6.4 Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of, all or substantially all of its
property or business, except that:
63
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving corporation) or with or into any
Wholly Owned Subsidiary (provided that a Wholly Owned Subsidiary shall
be the continuing or surviving corporation); and
(b) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to the Borrower
or any Wholly Owned Subsidiary.
6.5 Disposition of Property. Dispose of any of its property,
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any shares of such Subsidiary's Capital Stock to any Person,
except:
(a) the Disposition in the ordinary course of business of
obsolete or worn out property or any other property (other than voice
circuit switches) which Parent deems no longer needed or useful in the
conduct of the business of the Borrower and its Subsidiaries;
(b) the sale of inventory, capacity in a telecommunications
network or dark fiber in the ordinary course of business;
(c) Dispositions permitted by Section 6.4(b);
(d) the sale or issuance of any Subsidiary's Capital Stock to
the Borrower or any Wholly Owned Subsidiary; and
(e) Dispositions of (i) other property yielding gross proceeds
to the Borrower and its Subsidiaries (valued at the initial principal
amount thereof in the case of non-cash proceeds consisting of notes or
other debt securities and valued at fair market value in the case of
other non-cash proceeds) not in excess of (x) $250,000 in the aggregate
for any fiscal year of the Borrower and (y) $500,000 in the aggregate
during the term of this Agreement and (ii) voice circuit switches.
6.6 Restricted Payments. Declare or pay any dividend (other
than dividends payable solely in common stock or preferred Capital Stock (which
preferred Capital Stock shall not be subject to any mandatory redemption
provisions) of the Person making such dividend) on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of, any
Capital Stock of the Borrower or any Subsidiary of the Borrower, whether now or
hereafter outstanding, or make any other distribution in respect thereof, or (in
the case of the Borrower) return any capital of the Borrower to the Parent, or
make any other payment or other distribution to the Parent or any Subsidiary of
the Parent that is not the Borrower or a Subsidiary of the Borrower, in any such
case, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary (collectively, "Restricted
Payments"), except that:
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(a) any Subsidiary may make Restricted Payments to the
Borrower or any Wholly Owned Subsidiary of the Borrower;
(b) the Borrower may pay (i) dividends to the Parent after
December 31, 2003 in amounts no greater than the amounts of scheduled
cash interest payments in respect of Indebtedness of the Parent the
proceeds of which were used to fund Contributed Parent Indebtedness or
Permitted Borrower Subordinated Indebtedness (provided that such
dividends may only be paid as and when such interest becomes due and
payable) and (ii) management fees to the Parent pursuant to the
Management Agreement not more often than quarterly, provided that each
such quarterly management fee payment shall be in an amount not to
exceed (A) for any fiscal quarter of the Borrower prior to the date
which the Borrower has delivered a Compliance Certificate indicating
that the Consolidated Borrower Leverage Ratio as at the last day of a
fiscal quarter is not greater than 3.0 to 1.00, an amount equal to the
greater of (I) $4,000,000 and (II) the sum of (x) the product of
$250,000 multiplied by the number of Completed Markets achieved by the
Borrower and its Subsidiaries as of the end of such fiscal quarter
(provided that such number of Completed Markets may not exceed 15
Completed Markets for purposes of this clause (x)) plus (y) the product
of $175,000 multiplied by the number of Completed Markets achieved by
the Borrower and its Subsidiaries as of the end of such fiscal quarter
that are in excess of 15 Completed Markets and (B) for any other fiscal
quarter, the product of 0.25 multiplied by the amount set forth below
opposite the year such management fee is to be paid:
Year Amount
---- ------
1999-2003 $23,000,000
2004 24,000,000
2005 - thereafter 27,500,000
; provided that no such payment may be made pursuant to the foregoing clauses
(i) and (ii), unless (A) no Default or Event of Default shall have occurred and
be continuing both before and after the making of such payment and (B) the
Parent and the Borrower shall have delivered to the Administrative Agent
certificates demonstrating compliance, on a pro forma basis after giving effect
to such payment and the application of the proceeds thereof by the Parent, with
the covenants set forth in Section 6.1 and 6A.1, respectively; and
(c) the Borrower may reimburse the Parent for expenditures
made by the Parent on behalf of the Borrower and its Subsidiaries in
the ordinary course of business.
6.7 Capital Expenditures. Make or commit to make any Capital
Expenditure (other than Capital Expenditures for additional Markets permitted by
Section 6.16 funded with Contributed Capital in excess of Additional Capital),
except Capital Expenditures of the Borrower and its Subsidiaries in the ordinary
course of business in amounts not exceeding the amount set forth below for each
of the periods set forth below:
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-------------------------------------------------------------------
Period Amount
-------------------------------------------------------------------
1999 $20,307,280
-------------------------------------------------------------------
2000 53,924,410
-------------------------------------------------------------------
2001 80,474,560
-------------------------------------------------------------------
2002 54,479,440
-------------------------------------------------------------------
2003 55,463,370
-------------------------------------------------------------------
2004 48,014,860
-------------------------------------------------------------------
2005 47,746,100
-------------------------------------------------------------------
2006 48,250,550
-------------------------------------------------------------------
2007 47,478,670
-------------------------------------------------------------------
provided, that (A) any amount not so expended in the period for which it is
permitted may be carried over for expenditure in the next succeeding period and
(B) Capital Expenditures made pursuant hereto during any period shall be deemed
made, first, in respect of amounts permitted for such period as provided above
and, second, in respect of amounts carried over from the prior period pursuant
to subclause (A) above.
6.8 Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting a business unit of, or make any other investment in, any
Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 6.2;
(d) travel advances to employees of the Borrower or any
Subsidiary of the Borrower in the ordinary course of business, and
relocation and other loans to such employees not in excess of $500,000,
in the case of any such employee at any one time outstanding, or
$1,000,000 in the aggregate for all such employees at any one time
outstanding;
(e) Permitted Acquisitions;
(f) Investments in assets useful in the Borrower's
Telecommunications Business with the proceeds of any Reinvestment
Deferred Amount; and
(g) intercompany Investments by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such
investment, is a Wholly Owned Subsidiary;
(h) Restricted Payments permitted by Section 6.6;
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(i) Investments acquired (i) in exchange for any other
Investment or any receivable in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of any Person,
(ii) as a result of a foreclosure upon any assets securing any secured
Indebtedness or (iii) in satisfaction of a judgment;
(j) Investments in prepaid expenses, negotiable instruments
held for collection and lease, utility, workers' compensation,
performance and other similar deposits in the ordinary course of
business; and
(k) promissory notes or other Indebtedness received in
connection with Dispositions permitted by Section 6.5 in an aggregate
amount not to exceed $2,000,000 at any one time outstanding; provided
that any such promissory note (or series of related promissory notes)
payable in a principal amount equal to or greater than $50,000 shall
have been delivered to the Administrative Agent to be held as
Collateral pursuant to the Guarantee and Collateral Agreement.
6.9 Optional Payments Under and Modifications of Certain
Agreements. (a) Make or offer to make any optional or voluntary payment,
prepayment, repurchase or redemption of or otherwise optionally or voluntarily
defease or segregate funds with respect to any Permitted Borrower Subordinated
Indebtedness or (b) amend, modify, waive or otherwise change, or consent or
agree to any amendment, modification, waiver or other change to, any of the
terms of (i) any Permitted Borrower Subordinated Indebtedness (other than any
such amendment, modification, waiver or other change that would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon), (ii) the Management
Agreement or (iii) the Stock Agreements, except, in the case of clause (ii) or
(iii) above, in a manner that, in the reasonable discretion of the Required
Lenders, could not be expected to be materially adverse to the interests of the
Lenders.
6.10 Transactions with Affiliates. Except for (i) the exercise
of rights and performance of obligations under the Management Agreement in
accordance with the terms thereof, (ii) the payment of reasonable and customary
directors fees to, and reasonable and customary indemnity provided on behalf of,
officers and directors of any Loan Party and (iii) any Restricted Payments
permitted by Section 6.6 and any Investments permitted by Section 6.8, directly
or indirectly enter into any transaction, including any purchase, sale, lease or
exchange of property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate of the Borrower (other
than the Borrower or any Wholly Owned Subsidiary) unless (a) such transaction is
(i) otherwise permitted under this Agreement, (ii) in the ordinary course of
business of the Borrower or such Subsidiary, as the case may be, and (iii) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person that is not an Affiliate and (b) in the case of any
such transaction involving consideration in excess of $1,000,000, the Lenders
shall have received prior written notice thereof.
6.11 Sales and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by the Borrower or any Subsidiary of real or
personal property that has
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been or is to be sold or transferred by the Borrower or such Subsidiary to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower or such Subsidiary.
6.12 Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than December 31 or change the Borrower's method
of determining fiscal quarters except with the prior written consent of the
Required Lenders, which consent shall not be unreasonably withheld.
6.13 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a
party, other than (a) this Agreement and the other Loan Documents and (b) any
agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall
only be effective against the assets financed thereby).
6.14 Clauses Restricting Subsidiary Distributions. Enter into
or suffer to exist or become effective any consensual encumbrance or restriction
on the ability of any Subsidiary of the Borrower to (a) make Restricted Payments
in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b)
make loans or advances to, or other Investments in, the Borrower or any other
Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or
any other Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents and (ii) any restrictions with respect to a Subsidiary
imposed pursuant to an agreement that has been entered into in connection with
the Disposition of all or substantially all of the Capital Stock or assets of
such Subsidiary.
6.15 Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for the Borrower's Telecommunications
Business in the United States of America.
6.16 Entry Into Additional Markets. Expend an amount in excess
of $250,000 in connection with the development or build-out of any Market (other
than the Initial Markets) unless the following conditions shall be satisfied:
(a) the Borrower shall have given at least 15 days' prior written notice to the
Administrative Agent and each Lender, (b) such Market shall have been listed on
Schedule 6.16B and (c) the Borrower shall have delivered to the Lenders a
certificate of a Responsible Officer of the Borrower attaching the business plan
for such Market and stating that (and setting forth in reasonable detail the
relevant information) the Borrower and its Subsidiaries have a combination of
(i) cash and Cash Equivalents, (ii) unused availability under the Term Facility
and (iii) unused irrevocable commitments under the Capital Call Agreement, to
fund fully (taking into account its other capital requirements and other sources
of funds permitted hereunder) the build-out of such Market, including start-up
losses (the amount of such additional capital, the "Additional Capital").
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SECTION 6A. NEGATIVE COVENANTS OF THE PARENT
The Parent hereby agrees that, so long as the Commitments
remain in effect or any Loan or other amount is owing to any Lender or the
Administrative Agent hereunder, the Parent shall not, directly or indirectly:
6A.1. Financial Condition Covenants.
(a) Consolidated Parent Debt-to-Capitalization Ratio.
Permit the Consolidated Parent Debt-to-Capitalization Ratio at any time to
exceed 75%.
(b) Consolidated Parent Leverage Ratio. From and after March
31, 2004, permit the Consolidated Parent Leverage Ratio as at the last day of
any fiscal quarter set forth below to exceed the ratio set forth below opposite
such fiscal quarter:
Consolidated Parent
Fiscal Quarter Leverage Ratio
-------------- --------------
3/31/04 15.00 to 1
6/30/04 11.00 to 1
9/30/04 9.00 to 1
12/31/04 8.00 to 1
3/31/05 7.00 to 1
6/30/05 7.00 to 1
9/30/05 6.00 to 1
12/31/05 6.00 to 1
3/31/06 5.00 to 1
6/30/06 5.00 to 1
9/30/06 5.00 to 1
12/31/06 and each fiscal 5.00 to 1
quarter end thereafter
6A.2. Indebtedness. Create, issue, incur, assume, become
liable in respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness outstanding on the date hereof and listed on
Schedule 6A.2(a) and any refinancings, refundings, renewals or
extensions thereof (without increasing, or shortening the maturity of,
the principal amount thereof); and
(b) additional Indebtedness not otherwise permitted pursuant
to this Section 6A.2, provided that (i) at the time of incurrence
thereof, the Parent is in compliance with the Capital Call Agreement,
(ii) the Borrower shall have achieved at least six Completed Markets
and (iii) (A) the terms of such additional Indebtedness shall not
contain any cross-default provisions (but may include a
cross-acceleration provision), (B) the terms of such
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additional Indebtedness shall not contain any financial maintenance
covenants, (C) such additional Indebtedness shall not be secured by any
asset of the Parent or any of its Subsidiaries (other than restricted
cash or Cash Equivalents securing prefunded interest payments), (D) no
portion of the principal of such additional Indebtedness shall be
scheduled to be redeemed, repurchased or otherwise repaid prior to the
date that is six months after the Termination Date and (E) such
additional Indebtedness shall otherwise be on terms then customary for
high-yield debt securities of comparable issuers.
6A.3. Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for the Parent's Telecommunications
Business in North America.
6A.4. Negative Pledge Clauses. Enter into or suffer to exist
or become effective any agreement that prohibits or limits the ability of the
Parent to create, incur, assume or suffer to exist any Lien upon the Capital
Stock of the Borrower or the network operations equipment owned by the Parent or
hereafter acquired by it, to secure its obligations under the Loan Documents to
which it is a party, other than this Agreement and the other Loan Documents.
6A.5. Changes in Fiscal Periods. Permit the fiscal year of the
Parent to end on a day other than December 31 or change the Parent's method of
determining fiscal quarters except with the prior written consent of the
Required Lenders, which consent shall not be unreasonably withheld.
6A.6. No Expenditures of Unfunded 24-Market Amount. From and
after the date of incurrence by the Parent of any Indebtedness pursuant to
Section 6A.2(b), make or commit to make any payment or expenditure of any kind,
other than a contribution to the capital of (or expenditure on behalf of) the
Borrower, unless, on a pro forma basis after giving effect to such payment or
expenditure, no Default or Event of Default shall have occurred and be
continuing and the Parent shall have on deposit cash and Cash Equivalents in an
aggregate amount that is greater than or equal to the Unfunded 24-Market Amount,
if any, as of the date of the making of (or the commitment to make, as the case
may be) such payment or expenditure.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
when due in accordance with the terms hereof; or the Borrower shall
fail to pay any interest on any Loan, or any other amount payable
hereunder or under any other Loan Document, within five days after any
such interest or other amount becomes due in accordance with the terms
hereof; or
(b) any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in
any certificate, document or financial or other statement furnished by
it at any time under or in connection with this
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Agreement or any such other Loan Document shall prove to have been
inaccurate in any material respect on or as of the date made or deemed
made; or
(c) (i) any Loan Party shall default in the observance or
performance of any agreement contained in Section 5.7(a), Section 6 or
Section 6A of this Agreement or Sections 5.5 and 5.7(b) of the
Guarantee and Collateral Agreement or (ii) an "Event of Default" under
and as defined in any Mortgage shall have occurred and be continuing;
or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice to the Borrower from the Administrative
Agent or any Lender; or
(e) the Parent, the Borrower or any of their respective
Subsidiaries shall (i) default in making any payment of any principal
of any Indebtedness (including any Guarantee Obligation, but excluding
the Loans) on the due date thereof; or (ii) default in making any
payment of any interest on any such Indebtedness beyond the period of
grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case
of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal
amount of which exceeds in the aggregate (x) in the case of the Parent
or any of its Subsidiaries (other than the Borrower and its
Subsidiaries), $2,500,000, or (y) in the case of the Borrower and its
Subsidiaries, $1,500,000; or
(f) (i) the Parent, the Borrower or any of their respective
Subsidiaries shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief
of debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or the Parent, the Borrower or any of
their respective Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the
Parent, the
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Borrower or any of their respective Subsidiaries any case,
proceeding or other action of a nature referred to in clause (i) above
that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against the Parent, the Borrower or any of their respective
Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets that results in the entry of
an order for any such relief that shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Parent, the Borrower or any of their
respective Subsidiaries shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) the Parent,
the Borrower or any of their respective Subsidiaries shall generally
not, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Plan for purposes
of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Borrower or any Commonly
Controlled Entity shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other similar event or condition not in
the ordinary course shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could, in
the sole judgment of the Required Lenders, reasonably be expected to
have a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against
the Parent, the Borrower or any of their respective Subsidiaries
involving in the aggregate a liability (not paid or fully covered by
insurance) of (x) in the case of the Parent or any of its Subsidiaries
(other than the Borrower and its Subsidiaries), $2,500,000 or more, or
(y) in the case of the Borrower or any of its Subsidiaries, $1,500,000
or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(i) the Capital Call Agreement or any of the Security
Documents shall cease, for any reason, to be in full force and effect,
or any Loan Party or any Affiliate of any Loan Party shall so assert,
or any Lien created by any of the Security Documents shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
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(j) any guarantee of any Loan Party contained in Section 2 of
the Guarantee and Collateral Agreement shall cease, for any reason, to
be in full force and effect while such Loan Party remains a party
thereto or any Loan Party or any Affiliate of any Loan Party shall so
assert; or
(k) (i) the Venture Investors shall cease to have the power to
vote or direct the voting of securities having a majority of the
ordinary voting power for the election of directors of the Parent
(determined on a fully diluted basis); or (ii) the Founding Stockholder
(as defined in the Venture Stockholders Agreement) transfers any of its
Founder's Shares (as defined therein) in violation of Section 5(a) of
the Venture Stockholders Agreement; or (iii) any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), excluding the
Venture Investors, shall become, or obtain rights (whether by means or
warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly
or indirectly, of more than 35% of the combined voting power of the
outstanding Capital Stock of the Parent; or (iv) any Venture Investor,
together with its affiliates, shall become, or obtain rights (whether
by means or warrants, options or otherwise) to become, the "beneficial
owner" (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange
Act), directly or indirectly, of more than 50% of the combined voting
power of the outstanding Capital Stock of the Parent; or (v) the board
of directors of the Parent shall cease to consist of a majority of
Continuing Directors; or (vi) the Parent at any time shall cease to own
and control, of record and beneficially, directly, 100% of each class
of outstanding Capital Stock of the Borrower free and clear of all
Liens (except Liens created by the Guarantee and Collateral Agreement);
or (vii) the shares of each class of outstanding Capital Stock of any
Subsidiary of the Borrower shall cease to be owned by the Borrower free
and clear of all Liens (except Liens created by the Guarantee and
Collateral Agreement and Liens, if any, permitted by Section 6.3); or
(l) (i) the Parent at any time shall fail to perform any of
its obligations under the Capital Call Agreement, including, without
limitation, the funding of capital contributions to the Borrower in the
amounts and on the dates provided for therein, or (ii) the Parent shall
fail to maintain at all times cash and Cash Equivalents in an aggregate
amount equal to its then-remaining obligations to the Borrower under
the Capital Call Agreement; or
(m) any of the following events shall occur and the occurrence
thereof, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect: (i) any filing with, license,
permit, certification or franchise granted by, or authorization or
other consent or approval of, the FCC, any PUC or any other
Governmental Authority (collectively, "Regulatory Authorizations") (x)
shall not be made or obtained, as the case may be, as and when required
to permit (A) the continuing conduct by the Parent, the Borrower and
its Subsidiaries of their respective businesses and operations in
substantially the manner then being conducted and (B) the performance
by each Loan Party of its obligations under the Loan Documents, or (y)
shall be cancelled, terminated, rescinded,
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revoked, suspended, materially impaired or otherwise finally denied
renewal, or shall cease to be in full force and effect, or (ii) any
proceeding shall have been instituted by or shall have been commenced
before any court, the FCC, any PUC or any other Governmental Authority
that could reasonably be expected to result in (x) cancellation,
termination, rescission, revocation, suspension, material impairment or
denial of renewal of any Regulatory Authorization or (y) a modification
of any Regulatory Authorization in a material adverse respect or a
renewal thereof on terms that materially and adversely affect the
economic or commercial value or usefulness thereof, or (iii) any
material Interconnection Agreement shall be terminated and not renewed
or replaced or shall be suspended or otherwise materially impaired, or
shall be renegotiated and renewed or replaced on terms that materially
and adversely affect the economic or commercial value or usefulness
thereof, whether by action of the parties thereto or by action of or
under, modification to, or rescinding of the Communications Act or any
other applicable laws or regulations, in whole or in part;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required Lenders,
the Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Commitments to
be terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative Agent may,
or upon the request of the Required Lenders, the Administrative Agent shall, by
notice to the Borrower, declare the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement and the other Loan
Documents to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are hereby
expressly waived by the Borrower.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
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8.2 Delegation of Duties. The Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither Administrative Agent nor
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of any Loan Party a party thereto to perform its
obligations hereunder or thereunder. The Administrative Agent shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
8.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to the Parent or the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Required Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
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8.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender, the Parent or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if
so specified by this Agreement, all Lenders); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or Affiliates
have made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of a
Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
Affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their Affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of
a Loan Party that may come into the possession of the Administrative Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Parent or the Borrower and without limiting the obligation of the Parent or
the Borrower to do so), ratably according to their respective Aggregate Exposure
Percentages in effect on the date on which indemnification is sought under this
Section (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with such Aggregate Exposure Percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits,
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costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative Agent's gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of the Loans and all other amounts
payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Loan Party as though the
Administrative Agent were not the Administrative Agent. With respect to its
Loans made or renewed by it, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Lenders a successor Administrative Agent for the Lenders,
which successor Administrative Agent shall (unless an Event of Default under
Section 7(a) or Section 7(f) with respect to the Borrower shall have occurred
and be continuing) be subject to approval by the Borrower (which approval shall
not be unreasonably withheld or delayed), whereupon such successor
Administrative Agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor Administrative Agent effective upon such appointment and approval, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the part
of such former Administrative Agent or any of the parties to this Agreement or
any holders of the Loans. If no successor Administrative Agent has accepted
appointment as Administrative Agent by the date that is 10 days following a
retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided for above. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions of
this Section 8 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement and the
other Loan Documents.
SECTION 9. MISCELLANEOUS
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9.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) eliminate or reduce any voting rights under
this Section 9.1, forgive the principal amount or extend the final scheduled
date of maturity of any Loan, extend the scheduled date of any amortization
payment in respect of any Term Loan, reduce the stated rate of any interest or
fee payable hereunder or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender's Commitment, in
each case without the consent of each Lender directly affected thereby; (ii)
reduce any percentage specified in the definition of Required Lenders, consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or
substantially all of the Collateral, release all or substantially all of the
Subsidiaries from their obligations under the Guarantee and Collateral Agreement
or release the Parent from its obligations under the Capital Call Agreement, in
each case without the consent of all Lenders; (iii) amend, modify or waive any
provision of Section 2.15 without the consent of the Majority Facility Lenders
in respect of each Facility adversely affected thereby; (iv) reduce the
percentage specified in the definition of Majority Facility Lenders with respect
to any Facility without the consent of all Lenders under such Facility; or (v)
amend, modify or waive any provision of Section 8 without the consent of the
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and all future
holders of the Loans. In the case of any waiver, the Loan Parties, the Lenders
and the Administrative Agent shall be restored to their former position and
rights hereunder and under the other Loan Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Parent, the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
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The Parent: ▇▇▇▇▇▇▇ Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Borrower and ▇▇▇▇▇▇▇ Communications Finance Company
its Subsidiaries: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Chief Financial Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: Canadian Imperial Bank of Commerce
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder until
payment in full of the Loans, interest thereon and all fees and other
Obligations hereunder.
9.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its out-of-pocket costs and
expenses incurred in
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connection with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of counsel to the
Administrative Agent and filing and recording fees and expenses, with statements
with respect to the foregoing to be submitted to the Borrower prior to the
Closing Date (in the case of amounts to be paid on the Closing Date) and from
time to time thereafter on a quarterly basis or at such other times as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel (including the allocated fees and expenses of
in-house counsel) to each Lender and of counsel to the Administrative Agent, (c)
to pay, indemnify, and hold each Lender and the Administrative Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender and the Administrative Agent and their respective officers,
directors, employees, affiliates, agents and controlling persons (each, an
"Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law applicable to
the operations of the Parent, the Borrower any of its Subsidiaries or any of the
Properties and the reasonable fees and expenses of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against any Loan Party
under any Loan Document (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"), provided, that the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries to so waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee. All amounts due under this Section
9.5 shall be payable promptly after written demand therefor. Statements payable
by the Borrower pursuant to this Section 9.5 shall be submitted to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ (Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇) (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), at the
address of the Borrower set forth in Section 9.2, or to such other Person or
address as may be hereafter designated by the Borrower in a written notice to
the Administrative Agent.
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The agreements in this Section 9.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the Parent,
the Borrower, the Lenders, the Administrative Agent, all future holders of the
Loans and their respective successors and assigns, except that the Borrower may
not assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or waiver
of any provision of any Loan Document, or any consent to any departure by any
Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Loans or any fees
payable hereunder, or postpone the date of the final maturity of the Loans, in
each case to the extent subject to such participation. The Borrower agrees that
if amounts outstanding under this Agreement and the Loans are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall, to the maximum extent
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in Section 9.7(a) as fully as
if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18 with respect
to its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender; provided that, in the case of Section 2.17, such
Participant shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with
applicable law, at any time and from time to time assign to any Lender, any
affiliate of any Lender or any Approved Fund or, with the consent of the
Borrower and the Administrative Agent (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other
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entity (an "Assignee") all or any part of its rights and obligations under this
Agreement pursuant to an Assignment and Acceptance, executed by such Assignee,
such Assignor and any other Person whose consent is required pursuant to this
paragraph, and delivered to the Administrative Agent for its acceptance and
recording in the Register; provided that no such assignment to an Assignee
(other than any Lender, any affiliate of any Lender or any Approved Fund) shall
be in an aggregate principal amount of less than $5,000,000 (other than in the
case of an assignment of all of a Lender's interests under this Agreement),
unless otherwise agreed by the Borrower and the Administrative Agent. For
purposes of the proviso contained in the preceding sentence, the amount
described therein shall be aggregated in respect of each Lender and its related
Approved Funds, if any. Any such assignment need not be ratable as among the
Facilities. Upon such execution, delivery, acceptance and recording, from and
after the effective date determined pursuant to such Assignment and Acceptance,
(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 with a Commitment and/or Loans as set forth therein, and (y) the
Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section 9.6, the consent of the
Borrower shall not be required for any assignment that occurs when an Event of
Default shall have occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 9.2 a copy of each Assignment and
Acceptance delivered to it and a register (the "Register") for the recordation
of the names and addresses of the Lenders and the Commitment of, and the
principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each other Loan Party, the Administrative Agent and the
Lenders shall treat each Person whose name is recorded in the Register as the
owner of the Loans and any Notes evidencing the Loans recorded therein for all
purposes of this Agreement. Any assignment of any Loan, whether or not evidenced
by a Note, shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer 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 designated Assignee.
(e) Upon its receipt of a duly completed Assignment and
Acceptance executed by an Assignor, an Assignee and any other Person whose
consent is required by Section 9.6(c), together with payment to the
Administrative Agent of a registration and processing fee of $4,000, the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) record the information contained therein in the Register on the
effective date determined pursuant thereto.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 9.6 concerning assignments of
Loans and Notes relate only to absolute
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assignments and that such provisions do not prohibit assignments creating
security interests, including any pledge or assignment by a Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law.
(g) The Borrower, upon receipt of written notice from the
relevant Lender, agrees to issue Notes to any Lender requiring Notes to
facilitate transactions of the type described in paragraph (f) above.
9.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall, at any time after the Loans and other amounts payable hereunder
shall immediately become due and payable pursuant to Section 7, receive any
payment of all or part of the Obligations owing to it, or receive any collateral
in respect thereof (whether voluntarily or involuntarily, by set-off, pursuant
to events or proceedings of the nature referred to in Section 7(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the other
Lenders a participating interest in such portion of the Obligations owing to
each such other Lender, or shall provide such other Lenders with the benefits of
any such collateral, as shall be necessary to cause such Benefitted Lender to
share the excess payment or benefits of such collateral ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefitted Lender, such purchase
shall be rescinded, and the purchase price and benefits returned, to the extent
of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Parent or the Borrower, any such notice being expressly waived by the Parent and
the Borrower to the extent permitted by applicable law, upon any amount becoming
due and payable by the Parent or the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the Parent
or the Borrower, as the case may be. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument. Delivery of an executed signature page of this
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative Agent.
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9.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Parent, the Borrower, the Administrative Agent
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
9.12 Submission To Jurisdiction; Waivers. Each party to this
Agreement hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States for
the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Parent or the Borrower, as the case may be at its
address set forth in Section 9.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to ▇▇▇ in any other jurisdiction; and
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(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
9.13 Acknowledgements. Each of the Parent and the Borrower
hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Parent or the Borrower
arising out of or in connection with this Agreement or any of the other
Loan Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Parent and the Borrower, on the other
hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Parent, the Borrower
and the Lenders.
9.14 Releases of Guarantees and Liens. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 9.1) to take any action requested by the Borrower having the effect
of releasing any Collateral or guarantee obligations (i) to the extent necessary
to permit consummation of any transaction not prohibited by any Loan Document or
that has been consented to in accordance with Section 9.1 or (ii) under the
circumstances described in paragraph (b) below.
(b) At such time as the Loans and the other obligations under
the Loan Documents (other than obligations under or in respect of Hedge
Agreements) shall have been paid in full and the Commitments have been
terminated, the Collateral shall be released from the Liens created by the
Security Documents, and the Security Documents and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent
and each Loan Party under the Security Documents shall terminate, all without
delivery of any instrument or performance of any act by any Person.
9.15 Confidentiality. Each of the Administrative Agent and
each Lender agrees to keep confidential all non-public information provided to
it by any Loan Party pursuant to this Agreement that is designated by such Loan
Party as confidential; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to
the Administrative Agent, any other Lender, any Affiliate of any Lender or any
Approved Fund, (b) to any Transferee or prospective Transferee that agrees to
comply with the provisions of this Section, (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any
of its Affiliates, (d) if required by any Governmental Authority having
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jurisdiction over the Administrative Agent or such Lender, (e) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (f) if required to do so in
connection with any litigation or similar proceeding, (g) that has been publicly
disclosed, (h) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, or (i) in connection with the
exercise of any remedy hereunder or under any other Loan Document.
9.16 WAIVERS OF JURY TRIAL. THE PARENT, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By:
------------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ COMMUNICATIONS FINANCE COMPANY
By:
------------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By:
------------------------------------------
Name:
Title:
87
CIBC INC.
By:
------------------------------------------
Name:
Title:
88
BARCLAYS BANK PLC
By:
------------------------------------------
Name:
Title:
89
GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------------------------
Name:
Title:
90
NEWCOURT COMMERCIAL FINANCE CORPORATION
By:
------------------------------------------
Name:
Title:
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By:
------------------------------------------
Name:
Title:
92
Annex A
--------------------------------------------------------------------------------
Pricing Grid
--------------------------------------------------------------------------------
Consolidated Borrower Applicable Margin for Applicable Margin for
Leverage Ratio Eurodollar Loans ABR Loans
--------------------------------------------------------------------------------
> 12:1 3.75% 2.75%
--------------------------------------------------------------------------------
>10:1(pound)12:1 3.50% 2.50%
--------------------------------------------------------------------------------
>8:1(pound)10:1 3.25% 2.25%
--------------------------------------------------------------------------------
>6:1(pound)8:1 3.00% 2.00%
--------------------------------------------------------------------------------
(pound) 6:1 2.75% 1.75%
--------------------------------------------------------------------------------
Changes in the Applicable Margin resulting from changes in the Consolidated
Borrower Leverage Ratio shall become effective on the date (the "Adjustment
Date") on which financial statements are delivered to the Lenders pursuant to
Section 5.1 (but in any event not later than the 45th day after the end of each
of the first three quarterly periods of each fiscal year or the 90th day after
the end of each fiscal year, as the case may be) and shall remain in effect
until the next change to be effected pursuant to this paragraph. If any
financial statements referred to above are not delivered within the time periods
specified above, then, until such financial statements are delivered, the
Consolidated Borrower Leverage Ratio as at the end of the fiscal period that
would have been covered thereby shall for the purposes of this definition be
deemed to be greater than 12.0 to 1.0. In addition, at all times while an Event
of Default shall have occurred and be continuing, the Consolidated Borrower
Leverage Ratio shall for the purposes of this definition be deemed to be greater
than 12.0 to 1.0. Each determination of the Consolidated Borrower Leverage Ratio
pursuant to this pricing grid shall be made with respect to (or, in the case of
Consolidated Total Debt, as at the end of) the period of four consecutive fiscal
quarters of the Borrower ending at the end of the period covered by the relevant
financial statements.
93
SCHEDULE 1.1A
COMMITMENTS
----------------------------------------------------------------------------------------------------------
Lender Revolving Term
------ Commitment Commitment
---------- ----------
----------------------------------------------------------------------------------------------------------
CIBC Inc. $2,222,222.22 $17,777,777.78
Barclays Bank PLC $2,222,222.22 $17,777,777.78
General Electric Capital Corporation $2,222,222.22 $17,777,777.78
Newcourt Commercial Finance Corporation $2,222,222.22 $17,777,777.78
Union Bank of California, N.A. $1,111,111.11 $8,888,888.90
Total $10,000,000 $80,000,000
=========== ===========
----------------------------------------------------------------------------------------------------------
94
SCHEDULE 1.1B
VENTURE INVESTORS
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ Investments, L.P.
RAB Partnership, ▇.▇.
▇▇▇▇▇▇▇ SACHS
Stone Street Fund ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund 1998, L.P.
GS Capital Partners III, L.P.
GS Capital Partners III Offshore, ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co Verwaltungs GMbH
THE PRITZKER ORGANIZATION
Don Investment Group, LP
CENTENNIAL FUNDS, LP
Centennial Funds V, L.P.
Centennial Entrepreneurs Fund V, L.P.
TELECOM PARTNERS, LP
Telecom Partners II, L.P.
ONELIBERTY VENTURES, LP
OneLiberty Advisors Fund IV, L.P.
OneLiberty Fund IV, L.P.
NORWEST
Norwest Equity Partners VI, ▇.▇.
▇▇▇▇▇ CAPITAL PARTNERS
Chase Venture Capital Associates, L.P.
J.H. ▇▇▇▇▇▇▇▇ & CO.
▇. ▇. ▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇ Strategic Partners III, L.P.
95
SCHEDULE 3.4
CONSENTS, AUTHORIZATIONS, FILINGS AND NOTICES
Collateral assignment of Kansas CLEC authority -- ▇▇▇▇▇▇▇ Communications of
Kansas, Inc. is required to file an application pursuant to K.S.A. 66-136 for
approval of the assignment of the Kansas CLEC authority pursuant to Section 3.2
of the Guarantee and Collateral Agreement, and such assignment is subject to
receipt of that approval.
96
SCHEDULE 3.19(A)
UCC FILING JURISDICTIONS
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
▇▇▇▇▇▇▇ COMMUNICATIONS FINANCE COMPANY
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
▇▇▇▇▇▇▇ COMMUNICATIONS OF ARKANSAS, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
Arkansas Secretary of State
Arkansas Secretary of State (transmitting utility filing)
Pulaski County, Arkansas
▇▇▇▇▇▇▇ COMMUNICATIONS OF ILLINOIS, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
▇▇▇▇▇▇▇ COMMUNICATIONS OF INDIANA, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
▇▇▇▇▇▇▇ COMMUNICATIONS OF KANSAS, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
Kansas Secretary of State
Kansas Secretary of State (transmitting utility filing)
Sedgwick County, Kansas
▇▇▇▇▇▇▇ County, Kansas
▇▇▇▇▇▇▇ COMMUNICATIONS OF KENTUCKY, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
▇▇▇▇▇▇▇ COMMUNICATIONS OF MISSOURI, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
▇▇▇▇▇▇ County, Missouri
▇▇▇▇▇▇▇ COMMUNICATIONS OF OHIO
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
▇▇▇▇▇▇▇ COMMUNICATIONS OF OKLAHOMA, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
Tulsa County, Oklahoma
Oklahoma County, Oklahoma
Oklahoma Secretary of State (transmitting utility filing)
▇▇▇▇▇▇▇ COMMUNICATIONS OF TEXAS, INC.
Delaware Secretary of State
Delaware Secretary of State (transmitting utility filing)
Missouri Secretary of State
Missouri Secretary of State (transmitting utility filing)
St. Louis County, Missouri
97
SCHEDULE 3.15
SUBSIDIARIES
Jurisdiction % of Capital Stock
Name of Incorporation Owned by Borrower
---- ---------------- ------------------
▇▇▇▇▇▇▇ Communications of Arkansas, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Illinois, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Indiana, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Kansas, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Kentucky, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Missouri, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Ohio, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Oklahoma, Inc. Delaware 100%
▇▇▇▇▇▇▇ Communications of Texas, Inc. Delaware 100%
98
SCHEDULE 6.16A
INITIAL MARKETS
The Board of Directors of ▇▇▇▇▇▇▇ Communications, Inc. has approved entry into
the following Markets and environs:
St. Louis, Missouri
Kansas City, Missouri & Kansas City, Kansas
Springfield, Missouri
Wichita, Kansas
Little Rock, Arkansas
Tulsa, Oklahoma
Oklahoma City, Oklahoma
Indianapolis, Indiana
Akron, Ohio
Dayton, Ohio
Cincinnati, Ohio
Columbus, Ohio
Louisville, Kentucky
Lexington, Kentucky
99
SCHEDULE 6.16B
ADDITIONAL MARKETS
Abilene, TX Columbus, GA Honolulu, HI
Albany, GA Corpus Christi, TX Houma, WA
Albany, NY Dallas - Fort Worth, TX Houston, TX
Albuquerque, NM Danville, VA Huntington, WV
Alexandria, LA Davenport, IA Huntsville, AL
Allentown, PA Daytona Beach, FL Jackson, MI
Altoona, PA Decatur, ▇▇ ▇▇▇▇▇▇▇, MS
Amarillo, TX Decatur, IL Jacksonville, FL
Anchorage, AK Denver, CO Jacksonville, NC
Anniston, AL Des Moines, IA Jamestown, NY
Appleton, WI Detroit, MI Janesville-Belkoit, WI
Asheville, NC Dothan, ▇▇ ▇▇▇▇▇▇▇ City, TN
Athens, GA Dover, DE Johnstown, PA
Atlanta, GA Duluth, MN Joplin, MO
Augusta, GA Eau Claire, WI Kalamazoo, MI
Austin, TX El Paso, TX Killeen, TX
Bakersfield, CA Elkhart-Goshen, IN Knoxville, TN
Barnstable-Yarmouth, MA Erie, PA LaCrosse, WI-MN
Baton Route, LA Eugene, OR Lafayette, IN
Beaumont, TX Evansville, IN Lafayette, LA
Bellingham, WA Fargo-Moorhead, ND-MN Lake Charles, LA
Benton Harbor, MI Fayetteville, AR Lakeland, FL
Billings, MT Fayetteville, NC Lancaster, PA
Biloxi, MS Flagstaff, AZ Lansing, MI
Binghamton, NY Florence, AL Laredo, TX
Birmingham, AL Florence, SC Las Cruces, NM
Bloomington, IN Fort ▇▇▇▇▇▇▇, CO Las Vegas, NV
Bloomington-Normal, IL Fort ▇▇▇▇▇, FL Lawton, OK
Boise, ID Fort ▇▇▇▇▇▇, FL Lima, OH
Boston, MA Fort ▇▇▇▇▇, AR-OK Lincoln, NE
Brownsville, TX Fort ▇▇▇▇▇▇ Beach, FL Longview, TX
▇▇▇▇▇-College Station, TX Fort ▇▇▇▇▇, IN Lubbock, TX
Buffalo, NY Fresno, CA Lynchburg, VA
Burlington, VT Gainesville, FL Macon, GA
Canton, OH Glens Falls, NY Madison, WI
Cedar Rapids, IA Goldsboro, NC Mansfield, OH
▇▇▇▇▇▇▇, SC Grand Forks, ND-MN McAllen, TX
Charleston, WV Grand Junction, CO Medford-Ashland, OR
Charlotte, NC Grand Rapids, MI Melbourne, FL
Charlottesville, VA Green Bay, WI Memphis, TN
Chattanooga, TN Greensboro, NC Merced, CA
Chico-Paradise, CA Greenville, NC Miami, FL
Clarksville-Hopkinsville, TN-KY Greenville, SC Milwaukee, WI
Cleveland, OH Harrisburg, PA Minneapolis - St. ▇▇▇▇, MN
Colorado Springs, CO Hartford, CT Mobile, ▇▇
▇▇▇▇▇▇▇▇, MO Hattiesburg, MS Modesto, CA
Columbia, SC Hickory, NC Monroe, LA
▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇, ▇▇
Muncie, IN Sarasota, FL
Myrtle Beach, SC Savannah, GA
Naples, FL Scranton, PA
Nashville, TN Seattle, WA
New London, CT Sharon, PA
New Orleans, LA Sheboygan, WI
Norfolk, VA Shreveport, LA
Ocala, FL Sioux City, IA-NE
Odessa, TX Sioux Falls, SD
Omaha, NE South Bend, IN
Orlando, FL Spokane, WA
Panama City, FL Springfield, MA
Parkersburg-Marietta, WV-OH St. Cloud, MN
Pensacola, FL State College, PA
Peoria, IL Steubenville-Weirton, OH-WV
Philadelphia, PA Stockton, CA
Phoenix, AZ Sumter, SC
Pittsburgh, PA Syracuse, NY
Portland, ME Tallahassee, FL
Portland, OR Tampa, FL
Promo, UT Terre Haute, IN
Providence, RI Texarkana, TX-AR
Pueblo, CO Toledo, OH
Punta Gorda, FL Topeka, KS
Raleigh-Durham, NC Tucson, AZ
Reading, PA Tuscaloosa, AL
Redding, CA Tyler, TX
Reno, NV Utica, NY
Richland-Kennewick-Pasco, WA Visalia, CA
Richmond, VA Waco, TX
Roanoke, VA Washington, DC
Rochester, MN Waterloo-Cedar Falls, IA
Rochester, NY Wausau, WI
Rockford, IL ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ Wheeling WV
Sacramento, CA Wichita Falls, TX
Sagina, MI Williamsport, PA
Salinas, CA Wilmington, NC
Salt Lake City, UT Yakima, WA
San Angelo, TX York, PA
San Antonio, TX Youngstown, OH
San Diego, CA Yuba City, CA
San Francisco, CA Yuma, AZ
San Luis Obispo, CA
Santa Barbara, CA
101
SCHEDULE 6A.2(a)
EXISTING PARENT INDEBTEDNESS
-None-