$467,000,000
CREDIT AGREEMENT
Dated as of April 14, 2004,
As Amended and Restated as of October 22, 2004
among
HOMEBASE ACQUISITION, LLC
CONSOLIDATED COMMUNICATIONS TEXAS HOLDINGS, INC.
and
CONSOLIDATED COMMUNICATIONS ILLINOIS HOLDINGS, INC.,
as Parent Guarantors,
CONSOLIDATED COMMUNICATIONS, INC.
and
CONSOLIDATED COMMUNICATIONS ACQUISITION TEXAS, INC.,
as Co-Borrowers,
THE LENDERS REFERRED TO HEREIN,
CITICORP NORTH AMERICA, INC.,
as Administrative Agent,
CREDIT SUISSE FIRST BOSTON
and
DEUTSCHE BANK SECURITIES INC.
as Co-Syndication Agents,
CREDIT SUISSE FIRST BOSTON
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners,
and
COBANK, ACB,
as Documentation Agent
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms................................................. 1
SECTION 1.02. Classification of Loans and Borrowings........................ 31
SECTION 1.03. Terms Generally............................................... 31
SECTION 1.04. Effectiveness of Amendment and Restatement of
Original Credit Agreement; Term B Loan Prepayment
and Conversion, Etc.......................................... 31
ARTICLE II
THE CREDITS
SECTION 2.01. Credit Commitments............................................ 32
SECTION 2.02. Procedure for Borrowing....................................... 34
SECTION 2.03. Conversion and Continuation Options for Loans................. 35
SECTION 2.04. Swingline Loans............................................... 35
SECTION 2.05. Optional and Mandatory Prepayments of Loans;
Repayments of Term A Loans and Term C Loans.................. 37
SECTION 2.06. Letters of Credit............................................. 41
SECTION 2.07. Repayment of Loans; Evidence of Debt.......................... 45
SECTION 2.08. Interest Rates and Payment Dates.............................. 46
SECTION 2.09. Computation of Interest....................................... 46
SECTION 2.10. Fees.......................................................... 46
SECTION 2.11. Termination, Reduction or Adjustment of Commitments........... 47
SECTION 2.12. Inability to Determine Interest Rate; Unavailability
of Deposits; Inadequacy of Interest Rate..................... 48
SECTION 2.13. Pro Rata Treatment and Payments............................... 48
SECTION 2.14. Illegality.................................................... 50
SECTION 2.15. Requirements of Law........................................... 50
SECTION 2.16. Taxes......................................................... 51
SECTION 2.17. Indemnity..................................................... 53
SECTION 2.18. Change of Lending Office...................................... 53
SECTION 2.19. Sharing of Setoffs............................................ 53
SECTION 2.20. Assignment of Commitments Under Certain Circumstances......... 54
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Organization, etc............................................. 54
SECTION 3.02. Due Authorization, Non-Contravention, etc..................... 55
SECTION 3.03. Government Approval, Regulation, etc.......................... 55
SECTION 3.04. Validity, etc................................................. 55
SECTION 3.05. Representations and Warranties in the Acquisition
Agreement.................................................... 56
SECTION 3.06. Financial Information......................................... 56
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Page
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SECTION 3.07. No Material Adverse Effect.................................... 56
SECTION 3.08. Litigation.................................................... 56
SECTION 3.09. Compliance with Laws and Agreements........................... 56
SECTION 3.10. Subsidiaries.................................................. 56
SECTION 3.11. Ownership of Properties....................................... 56
SECTION 3.12. Taxes......................................................... 57
SECTION 3.13. Pension and Welfare Plans..................................... 58
SECTION 3.14. Environmental Warranties...................................... 58
SECTION 3.15. Regulations U and X........................................... 59
SECTION 3.16. Disclosure; Accuracy of Information; Pro Forma
Balance Sheets and Projected Financial Statements............ 59
SECTION 3.17. Insurance..................................................... 60
SECTION 3.18. Labor Matters................................................. 60
SECTION 3.19. Solvency...................................................... 60
SECTION 3.20. Securities.................................................... 60
SECTION 3.21. Indebtedness Outstanding...................................... 61
SECTION 3.22. Security Documents............................................ 61
SECTION 3.23. Anti-Terrorism Laws........................................... 62
ARTICLE IV
CONDITIONS
SECTION 4.01. Restatement Effective Date.................................... 63
SECTION 4.02. Conditions to Each Credit Event............................... 64
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Information, Reports, Notices, etc.................. 65
SECTION 5.02. Compliance with Laws, etc..................................... 67
SECTION 5.03. Maintenance of Properties..................................... 67
SECTION 5.04. Insurance..................................................... 67
SECTION 5.05. Books and Records; Visitation Rights.......................... 68
SECTION 5.06. Environmental Covenant........................................ 68
SECTION 5.07. Information Regarding Collateral.............................. 69
SECTION 5.08. Existence; Conduct of Business................................ 70
SECTION 5.09. Performance of Obligations.................................... 70
SECTION 5.10. Casualty and Condemnation..................................... 70
SECTION 5.11. Pledge of Additional Collateral............................... 70
SECTION 5.12. Further Assurances............................................ 71
SECTION 5.13. Use of Proceeds............................................... 72
SECTION 5.14. Payment of Taxes.............................................. 72
SECTION 5.15. Equal Security for Loans and Notes............................ 72
SECTION 5.16. Guarantees.................................................... 72
SECTION 5.17. Subordination of Intercompany Loans........................... 72
SECTION 5.18. Hedging....................................................... 72
SECTION 5.19. Certain Post-Closing Matters.................................. 73
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ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Indebtedness; Certain Equity Securities....................... 74
SECTION 6.02. Liens......................................................... 77
SECTION 6.03. Fundamental Changes; Line of Business......................... 79
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions................................................. 80
SECTION 6.05. Asset Sales................................................... 81
SECTION 6.06. Sale and Leaseback Transactions............................... 81
SECTION 6.07. Restricted Payments........................................... 82
SECTION 6.08. Transactions with Affiliates.................................. 83
SECTION 6.09. Restrictive Agreements........................................ 84
SECTION 6.10. Amendments or Waivers of Certain Documents;
Prepayments of Certain Indebtedness.......................... 84
SECTION 6.11. Interest Expense Coverage Ratio............................... 85
SECTION 6.12. Total Net Leverage Ratio...................................... 86
SECTION 6.13. Capital Expenditures.......................................... 87
SECTION 6.14. Senior Secured Leverage Ratio................................. 88
SECTION 6.15. Fixed Charge Coverage Ratio................................... 89
SECTION 6.16. Anti-Terrorism Law............................................ 90
SECTION 6.17. Embargoed Person.............................................. 90
SECTION 6.18. Anti-Money Laundering......................................... 90
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Listing of Events of Default.................................. 90
SECTION 7.02. Action if Bankruptcy.......................................... 93
SECTION 7.03. Action if Other Event of Default.............................. 93
SECTION 7.04. Action if Event of Termination................................ 93
SECTION 7.05. Borrowers' Right to Cure...................................... 93
ARTICLE VIII
THE AGENTS
SECTION 8.01. The Agents.................................................... 94
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices....................................................... 96
SECTION 9.02. Survival of Agreement......................................... 97
SECTION 9.03. Binding Effect................................................ 97
SECTION 9.04. Successors and Assigns........................................ 97
SECTION 9.05. Expenses; Indemnity........................................... 100
SECTION 9.06. Right of Setoff............................................... 102
SECTION 9.07. Applicable Law................................................ 102
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Page
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SECTION 9.08. Waivers; Amendment............................................ 102
SECTION 9.09. Interest Rate Limitation...................................... 104
SECTION 9.10. Entire Agreement.............................................. 105
SECTION 9.11. WAIVER OF JURY TRIAL.......................................... 105
SECTION 9.12. Severability.................................................. 105
SECTION 9.13. Counterparts.................................................. 105
SECTION 9.14. Headings...................................................... 105
SECTION 9.15. Jurisdiction; Consent to Service of Process................... 105
SECTION 9.16. Confidentiality............................................... 106
SECTION 9.17. Citigroup Direct Website Communications....................... 107
SECTION 9.18. Collateral Agent as Joint Creditor............................ 108
EXHIBIT A Form of Administrative Questionnaire
EXHIBIT B Form of Borrowing Request
EXHIBIT C Form of Assignment and Acceptance
EXHIBIT D [Intentionally Omitted]
EXHIBIT E Form of Compliance Certificate
EXHIBIT F-1 Form of Term A Note
EXHIBIT F-2 Form of Term C Note
EXHIBIT F-3 Form of Revolving Note
EXHIBIT G [Intentionally Omitted]
EXHIBIT H-1 Form of CCI Texas Borrower Group Guarantee
Agreement
EXHIBIT H-2 Form of CCI Illinois Borrower Group
Guarantee Agreement
EXHIBIT I-1 Form of Pledge Agreement
EXHIBIT I-2 Form of Homebase Pledge and Guarantee
Agreement
EXHIBIT J Form of Security Agreement
EXHIBIT K-1 [Intentionally Omitted]
EXHIBIT K-2 [Intentionally Omitted]
EXHIBIT K-3 [Intentionally Omitted]
EXHIBIT L [Intentionally Omitted]
EXHIBIT M Form of Mortgage
EXHIBIT N Form of Acknowledgment of Limitation of
Remedies
EXHIBIT O Form of Professional Services Fee
Subordination Agreement
SCHEDULE 2.01 Lenders and Commitments
SCHEDULE 3.06(b) Other Liabilities
SCHEDULE 3.08 Litigation
SCHEDULE 3.10 Subsidiaries
SCHEDULE 3.11(b) Leased and Owned Real Property
SCHEDULE 3.13 ERISA Matters
SCHEDULE 3.14(a) Facilities/Properties Not in Compliance with
Environmental Laws
SCHEDULE 3.14(b) Environmental Claims
SCHEDULE 3.14(c) Hazardous Materials
SCHEDULE 3.17 Insurance
SCHEDULE 3.21(a) Indebtedness to Remain Outstanding
SCHEDULE 3.21(b) Indebtedness to Be Paid
SCHEDULE 3.21(c) Liens to Be Terminated
SCHEDULE 3.21(d) Liens to Remain Outstanding
SCHEDULE 3.22(d) Mortgage Filing Offices
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SCHEDULE 4.01(f) Local Counsel
SCHEDULE 5.19(a)(i) Mortgaged Properties
SCHEDULE 5.19(a)(iii) Title Insurance Amounts
SCHEDULE 6.03(c) Other Businesses
SCHEDULE 6.04 Existing Investments
SCHEDULE 6.08(v) Existing Affiliate Transactions
SCHEDULE 6.09 Existing Restrictions
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CREDIT AGREEMENT (as amended, amended and restated, supplemented or
otherwise modified from time to time, this "Agreement") dated as of April 14,
2004 as amended and restated on October 22, 2004, among HOMEBASE ACQUISITION,
LLC ("Homebase"), CONSOLIDATED COMMUNICATIONS ILLINOIS HOLDINGS, INC. ("CCI
Illinois Holdings"), CONSOLIDATED COMMUNICATIONS TEXAS HOLDINGS, INC. ("CCI
Texas Holdings"), CONSOLIDATED COMMUNICATIONS, INC., an Illinois corporation
(the "CCI Borrower"), CONSOLIDATED COMMUNICATIONS ACQUISITION TEXAS, INC., a
Delaware corporation (the "TXU Borrower" and together with the CCI Borrower, the
"Borrowers"), the financial institutions listed on Schedule 2.01 to the Original
Credit Agreement (as defined below), as such Schedule may from time to time be
supplemented and amended and the financial institutions which have become Term C
Lenders hereunder pursuant to Lender Addendums (as defined below) (the
"Lenders"), CITICORP NORTH AMERICA, INC., as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders, COBANK, ACB, as
documentation agent (in such capacity, the "Documentation Agent"), CREDIT SUISSE
FIRST BOSTON, acting through its Cayman Islands Branch ("CSFB"), and DEUTSCHE
BANK SECURITIES INC., as co-syndication agents (in such capacity, the
"Co-Syndication Agents"), and CSFB and CITIGROUP GLOBAL MARKETS INC. ("CGMI"),
as joint lead arrangers and joint bookrunners (in such capacity, the "Joint Lead
Arrangers").
WHEREAS, Borrowers intend to prepay certain of their Obligations in
respect of Term B Loans under the Credit Agreement dated as of April 14, 2004
(the "Original Credit Agreement"), among Homebase, CCI Illinois Holdings, CCI
Texas Holdings, Borrowers, Joint Lead Arrangers, Co-Syndication Agents,
Administrative Agent, Documentation Agent and the existing Lenders thereunder
through the repayment and/or conversion of all outstanding Term B Loans into, or
with the proceeds of, Term C Loans (as defined herein);
WHEREAS, in connection therewith, Borrowers desire to amend and
restate the terms and provisions of the Original Credit Agreement in the form
hereof in order to, among other things, reflect the modifications set forth
above; and
WHEREAS, the Requisite Lenders (as defined in the Original Credit
Agreement) are willing to amend and restate the Original Credit Agreement and
are willing to continue to extend credit to Borrowers, and the other parties
hereto are willing to amend and restate the Original Credit Agreement, in each
case upon the terms and subject to the conditions set forth herein.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" means a Borrowing comprised of ABR Loans.
"ABR Loan" means any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article II.
"Acknowledgment of Limitation on Remedies" means an agreement in the
form of Exhibit N to the Original Credit Agreement executed by the
Administrative Agent and each of the Investor Members (as defined in the
Homebase LLC Agreement).
"Acquisition" means the acquisition by the TXU Borrower of all of
the Equity Interests of TXUCV and its subsidiaries and certain related rights
from Pinnacle One Partners, L.P. pursuant to the Acquisition Documents.
"Acquisition Documents" means the Stock Purchase Agreement, dated as
of January 15, 2004, by and between Pinnacle One Partners, L.P. and the TXU
Borrower (the "Acquisition Agreement") and each other agreement contemplated
thereby or entered into in connection therewith.
"Additional Collateral" shall have the meaning assigned to such term
in Section 5.11.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" has the meaning assigned to such term in the
preamble hereto.
"Administrative Questionnaire" means an Administrative Questionnaire
in the form of Exhibit A to the Original Credit Agreement.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) solely for purposes of determining compliance with Section 6.08,
to vote 10% or more of the securities (on a fully diluted basis) having
ordinary voting power for the election of directors or managing general
partners; or
(b) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Agent Fees" has the meaning assigned to such term in Section
2.10(c).
"Agent Parties" has the meaning assigned to such term in Section
9.17(c).
"Agents" means the Administrative Agent and the Collateral Agent.
"Aggregate Revolving Credit Exposure" means the aggregate amount of
the Revolving Lenders' Revolving Credit Exposures.
"Agreement" has the meaning assigned to such term in the preamble
hereto.
"Alternate Base Rate" means for any day, a rate per annum equal to
the highest of (a) the Administrative Agent's Base Rate in effect on such day,
(b) 0.5% per annum above the latest three-week moving average of secondary
market morning offering rates in the United States for three-month certificates
of deposit of major United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week period
ending on the next previous Friday by the Administrative Agent on the basis of
such rates reported by certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by the
Administrative Agent from three New York certificate of deposit
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dealers of recognized standing selected by the Administrative Agent, in either
case adjusted to the nearest 0.25% or, if there is no nearest 0.25%, to the next
higher 0.25% (the "Certificate of Deposit Rate"), and (c) the Federal Funds Rate
in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due
to a change in the Base Rate, the Certificate of Deposit Rate or the Federal
Funds Rate shall be effective as of the opening of business on the effective day
of such change in the Base Rate, the Certificate of Deposit Rate or the Federal
Funds Rate, respectively.
"Applicable Rate" means, for any day, (i) with respect to Term C
Loans, (A) in the case of ABR Loans (I) 1.50% per annum prior to April 1, 2005
and at any time that clause (A)(II) does not apply and (II) 1.25% per annum at
any time on or after April 1, 2005 if the Loans are rated at least B1 (stable)
by ▇▇▇▇▇'▇ and at least B+ (stable) from S&P, and (B) in the case of Eurodollar
Loans, (I) 2.50% per annum prior to April 1, 2005 and at any time that clause
(B)(II) does not apply and (II) 2.25% per annum at any time on or after April 1,
2005 if the Loans are rated at least B1 (stable) by ▇▇▇▇▇'▇ and at least B+
(stable) from S&P, and (ii) with respect to Revolving Loans and Term A Loans,
(A) before the Trigger Date, (x) 1.50% per annum, in the case of ABR Loans, and
(y) 2.50% per annum, in the case of Eurodollar Loans, and (B) on and after the
Trigger Date, the applicable rate per annum set forth in the table below (x)
under the caption "ABR Loans Spread," in the case of ABR Loans, and (y) under
the caption "Eurodollar Loans Spread," in the case of Eurodollar Loans, in each
case based upon the Total Net Leverage Ratio as of the most recent determination
date:
Total Net ABR Eurodollar
Leverage Loans Loans
Ratio Spread Spread
----- ------ ------
Greater than 4.75 to 1.0 1.50% 2.50%
Less than or equal to 4.75 to 1.0 1.25% 2.25%
Greater than 4.0 to 1.0
Less than or equal to 4.0 to 1.0 1.0% 2.0%
Greater than or equal to 3.50 to 1.0
Less than 3.50 to 1.0 0.75% 1.75%
For purposes of such calculation of the Applicable Rate with respect
to Revolving Loans and Term A Loans on and after the Trigger Date, (i) the Total
Net Leverage Ratio shall be determined as of the end of each Fiscal Quarter of
the Restricted Group's Fiscal Year based upon the combined consolidated
financial statements delivered pursuant to Section 5.01(a) or (b) and (ii) each
change in the Applicable Rate resulting from a change in the Total Net Leverage
Ratio shall be effective three (3) Business Days after the date on which the
Administrative Agent shall have received the applicable financial statements and
a Compliance Certificate calculating the Total Net Leverage Ratio. If at any
time the Borrowers have not submitted to the Administrative Agent the applicable
information as and when required under Section 5.01(a) or (b), the Applicable
Rate shall be the highest rate set forth in the table above until such time as
the Borrowers have provided the information required under Section 5.01(a) or
(b). Within one (1) Business Day of receipt of the applicable information as and
when required under Section 5.01(a) or (b), the Administrative Agent shall give
each Lender telefacsimile or telephonic notice (confirmed in writing) of the
Applicable Rate in effect from such date.
"Asset Sale" means any direct or indirect sale, transfer, lease,
conveyance or other disposition by any member of the Restricted Group of any of
its property or assets, including any sale or issuance of any Equity Interests
of any Subsidiary of either Borrower, except (a) sales, dispositions and leases
permitted by Sections 6.05(i) through (vii) and (b) any such transaction or
series of transactions which, if an Asset Sale, would not generate Net Proceeds
in excess of $1.0 million (or, when taken together with all other such
transactions, in excess of $5.0 million in any twelve-month period).
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04(b)), and accepted by the Administrative
Agent, in the form of Exhibit C to the Original Credit Agreement or such other
form as shall be approved by the Administrative Agent; provided that (i) all
references therein to "Term B Loans" are hereby deleted and replaced with "Term
C Loans" and (ii) all references therein to the "Credit Agreement" are hereby
amended to refer to this Agreement.
"Authorized Officer" means, with respect to either Borrower, those
of its officers and other authorized senior management level employees whose
signature and incumbency has been certified to the Administrative Agent and the
Lenders by the Secretary of such Borrower in a certificate dated the Effective
Date or any successor thereto.
"Available Proceeds" means, at any time, the amount of cash equity
contributed to the Borrowers following the Effective Date to the extent that (i)
such contribution was not in connection with an exercise of a Cure Right, (ii)
50% of such equity contribution was applied to a prepayment of Loans pursuant to
Section 2.05, or (iii) such contribution was not previously applied to make a
Restricted Payment pursuant to Section 6.07 or an Investment pursuant to Section
6.04.
"Available Revolving Credit Commitment" means as to any Revolving
Lender, at any time of determination, an amount equal to such Revolving Lender's
Revolving Credit Commitment at such time minus such Revolving Lender's Revolving
Credit Exposure at such time.
"Base Amount" has the meaning assigned to such term in Section 6.13.
"Base Rate" means the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its base rate in effect at its
principal office in New York City (the Base Rate not being intended to be the
lowest rate of interest charged by the Administrative Agent in connection with
extensions of credit to debtors) (any change in such rate announced by the
Administrative Agent shall take effect at the opening of business on the day
specified in the public announcement of such change).
"Board" means the Board of Governors of the Federal Reserve
System of the United States.
"Borrower Group" means either the CCI Borrower Group or the TXU
Borrower Group.
"Borrower Group Leverage Ratio" means, with respect to any Borrower
Group as of any date of determination, the ratio of (i) the principal amount of
Consolidated Indebtedness (excluding any amount of Consolidated Indebtedness
with respect to which a member of the other Borrower Group is the primary
obligor) as of such date of determination to (ii) the amount of Consolidated
EBITDA for the preceding Fiscal Year that is allocable to such Borrower Group as
set forth in a certificate signed by a Financial Officer of each Borrower and
delivered to the Administrative Agent containing a reasonably detailed
calculation of such allocation in form acceptable to the Administrative Agent;
provided that for purposes of determining the amount of Consolidated EBITDA for
any Fiscal Year that is allocable to a Borrower Group, transactions among
members of different Borrower Groups shall be adjusted so as to reflect
arm's-length terms for any transaction which was not on arm's length terms.
"Borrowers" has the meaning ascribed to such term in the preamble to
this Agreement.
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"Borrowing" means a Loan or group of Loans to either Borrower of the
same Class and Type made (including through a conversion or continuation) by the
applicable Lenders on a single date and as to which a single Interest Period is
in effect.
"Borrowing Date" means any Business Day specified in a notice
pursuant to Section 2.02 as a date on which either Borrower requests Loans to be
made hereunder.
"Borrowing Request" has the meaning assigned to such term in Section
2.02(a).
"Business Day" means a day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required
by law to close.
"Capital Expenditures" means, for any period, (a) any and all
expenditures made by any member of the Restricted Group in such period for
assets added to or reflected in its property, plant and equipment accounts or
other similar capital asset accounts or comparable items or any other capital
expenditures that are, or should be, set forth as "additions to plant, property
and equipment" on the financial statement prepared in accordance with GAAP,
whether such asset is purchased for cash or financed as an account payable or by
the incurrence of Indebtedness, accrued as a liability or otherwise including,
without limitation, as a result of incurring any Capital Lease Obligations.
"Capital Lease Obligations" means all monetary or financial
obligations of any member of the Restricted Group under any leasing or similar
arrangement conveying the right to use real or personal property, or a
combination thereof, which, in accordance with GAAP, would or should be
classified and accounted for as capital leases, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date on
which such lease may be terminated by the lessee without payment of a penalty.
"Cash Interest Expense" means, for any period, Consolidated Interest
Expense for such period, including imputed interest expense for Capital Lease
Obligations and excluding any interest expense not payable in cash (such as, for
example, amortization of discount and amortization of debt issuance costs). For
purposes of the Financial Covenants, for Test Periods ending prior to the one
year anniversary of the Effective Date, Cash Interest Expense shall be
determined on a pro forma basis to give effect to the Transactions as if they
occurred on the first day of such Test Period.
"CCI Borrower" has the meaning ascribed to such term in the preamble
to this Agreement.
"CCI Illinois Borrower Group" means CCI Illinois Holdings, the CCI
Borrower and each of the CCI Borrower's Subsidiaries.
"CCI Illinois Borrower Group Guarantee Agreement" means the
Guarantee Agreement, substantially in the form of Exhibit H-2 to the Original
Credit Agreement.
"CCI Illinois Holdings" has the meaning assigned to such term in the
preamble hereof.
"CCI Texas Borrower Group" means CCI Texas Holdings, the TXU
Borrower and each of the TXU Borrower's Subsidiaries.
"CCI Texas Borrower Group Guarantee Agreement" means the Guarantee
Agreement, substantially in the form of Exhibit H-1 to the Original Credit
Agreement.
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"CCI Texas Holdings" has the meaning assigned to such term in the
preamble hereto.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System List.
"CGMI" has the meaning assigned to such term in the preamble hereto.
"Change in Control" means the occurrence of any of the following:
(a) prior to the first Public Equity Offering resulting in a Public
Market, the Permitted Holders shall cease to own beneficially and of
record Equity Interests representing in the aggregate at least 51% of the
voting power of all of the Equity Interests of Homebase and at least 51%
of the economic interest of all of the Equity Interests in Homebase;
provided that no Change in Control shall be deemed to have occurred in the
event that all of the Equity Interests of Homebase are owned directly or
indirectly by a limited liability company or corporation (a "Super
Holdco") formed under the laws of the United States of America or any
State thereof for so long as Super Holdco owns all of the Equity Interests
of Homebase directly or indirectly through one or more of its wholly-owned
Subsidiaries that are limited liability companies or corporations and the
Permitted Holders own beneficially and of record Equity Interests
representing in the aggregate at least 51% of the voting power of all of
the Equity Interests of Super Holdco and at least 51% of the economic
interest of all Equity Interests in Super Holdco;
(b) prior to the first Public Equity Offering resulting in a Public
Market, the Permitted Holders shall cease for any reason to have the power
to appoint a majority of the members of the board of directors or other
governing body of Homebase or, in the event a Super Holdco has been
formed, Super Holdco;
(c) following the first Public Equity Offering that results in a
Public Market, any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act or any successor provisions to either
of the foregoing), including any group acting for the purpose of
acquiring, holding, voting or disposing of securities within the meaning
of Rule 13d-5(b)(1) under the Exchange Act, other than any one or more of
the Permitted Holders, becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act, except that any such person will be deemed
to have "beneficial ownership" of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 35% or more of the
total voting power of the Equity Interests of Homebase (or if a Super
Holdco has been formed, such Super Holdco) and the Permitted Holders shall
be the beneficial owners (as defined above) of a lesser percentage of the
total voting power of the Equity Interests of Homebase (or if a Super
Holdco has been formed, such Super Holdco);
(d) Homebase shall cease to own beneficially and of record all of
the Equity Interests of CCI Illinois Holdings and CCI Texas Holdings
(other than as a result of a transaction permitted by Section 6.03(a));
provided that no Change in Control shall be deemed to have occurred in the
event that Homebase contributes all of the Equity Interests of CCI
Illinois Holdings and CCI Texas Holdings to a newly formed limited
liability company or corporation (an "Intermediate Holdco") formed under
the laws of the United States of America or any State thereof, all of the
Equity Interests of which are owned by Homebase directly or indirectly
through one or more of its wholly-owned Subsidiaries that are limited
liability companies or corporations;
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(e) CCI Illinois Holdings shall cease to own beneficially and of
record all of the Equity Interests of the CCI Borrower (other than as a
result of a transaction permitted by Section 6.03(a));
(f) CCI Texas Holdings shall cease to own beneficially and of record
all of the Equity Interests of the TXU Borrower (other than as a result of
a transaction permitted by Section 6.03(a)); or
(g) any "change of control" occurs under the Senior Notes Indenture.
"Charges" has the meaning assigned to such term in Section 9.09.
"Class" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Term A Loans, Term C Loans or Swingline Loans, and when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Credit Commitment,
Term A Commitment or Term C Commitment, and when used in reference to any
Lender, refers to whether such Lender is a Revolving Lender, Term A Lender or a
Term C Lender.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all "Collateral," "Mortgaged Property,"
"Securities Collateral" or "Trust Property," as defined in any applicable
Security Document.
"Collateral Account" means the collateral account or sub-account
established and maintained by the Collateral Agent in its name as Collateral
Agent for the benefit of the Secured Parties, in accordance with the provisions
of the Security Agreement.
"Collateral Agent" means Citicorp North America, Inc., in its
capacity as collateral agent for the Secured Parties under the Security
Documents.
"Commitment" means, with respect to any Lender, such Lender's
Revolving Credit Commitment, Term A Commitment or Term C Commitment or any
combination thereof (as the context requires).
"Commitment Fee" has the meaning assigned to such term in Section
2.10(a).
"Commitment Fee Average Daily Amount" has the meaning assigned to
such term in Section 2.10(a).
"Commitment Fee Percentage" means, for any day (i) prior to the
Trigger Date, 0.50% per annum, and (ii) on and after the Trigger Date, (x) if
the Total Net Leverage Ratio is greater than or equal to 3.50 to 1.0, 0.50% and
(y) if the Total Net Leverage Ratio is less than 3.50 to 1.0, 0.375%.
"Commitment Fee Termination Date" has the meaning assigned to such
term in Section 2.10(a).
"Commitment Percentage" means the percentage of the Total Revolving
Credit Commitment represented by such Lender's Revolving Credit Commitment. If
the Revolving Credit Commitments have terminated or expired, the Commitment
Percentage shall be determined based upon the Revolving Credit Commitments most
recently in effect, giving effect to any assignments.
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"Communications" has the meaning assigned to such term in Section
9.17(a).
"Compliance Certificate" has the meaning assigned to such term in
Section 5.01(b) and shall be substantially in the form of Exhibit E to the
Original Credit Agreement except that (i) references therein to the "Credit
Agreement" shall refer to this Agreement and (ii) the reference to "$10.0
million" in the definition of "Total Net Debt" included therein shall be
replaced with "$25.0 million."
"Conduit Financing Arrangement" has the meaning assigned to such
term in Section 2.16.
"Consolidated Current Assets" means, with respect to the Restricted
Group as at any date of determination, the total assets of the Restricted Group
which should properly be classified as current assets on a combined consolidated
balance sheet of CCI Illinois Holdings and CCI Texas Holdings in accordance with
GAAP other than any cash or cash equivalents.
"Consolidated Current Liabilities" means, with respect to the
Restricted Group as at any date of determination, the total liabilities of the
Restricted Group which should properly be classified as current liabilities
(other than the current portion of any long term indebtedness) on a combined
consolidated balance sheet of CCI Illinois Holdings and CCI Texas Holdings in
accordance with GAAP.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period (a) plus all amounts deducted in arriving at such Consolidated
Net Income amount in respect of, without duplication, (i) interest expense,
amortization or write-off of debt discount, (ii) foreign, federal, state and
local income Taxes for such period, (iii) charges for depreciation of fixed
assets and amortization of intangible assets during such period, (iv) non-cash
charges for the impairment of long lived assets during such period, (v) fees
accrued during such period pursuant to the Professional Services Fee Letters in
an amount not to exceed $5.0 million in any twelve-month period in compliance
with Section 6.07(iii), (b) minus (in the case of gains) or plus (in the case of
losses) gain or loss on any sale of assets, (c) minus (in the case of gains) or
plus (in the case of losses) non-cash charges relating to foreign currency gains
or losses, (d) plus (in the case losses) and minus (in the case of income)
non-cash minority interest income or loss, (e) plus (in the case of items
deducted in arriving at Consolidated Net Income) and minus (in the case of items
added in arriving at Consolidated Net Income) non-cash charges resulting from
changes in accounting principles, (f) plus extraordinary loss as defined by
GAAP, (g) plus the first $15.0 million of other expenses relating to the
integration of the Acquired Business incurred after the Effective Date, during
the 2004 Fiscal Year and the 2005 Fiscal Year as specified in reasonable detail
in the Compliance Certificates delivered pursuant to Section 5.01 for the
applicable periods within such Fiscal Years, (h) minus the sum of (x) interest
income, and (y) extraordinary income or gains as defined by GAAP; provided that
Consolidated EBITDA for the Restricted Group for the Fiscal Quarters ended
September 30, 2003, December 31, 2003 and March 31, 2004 shall be deemed to be
$31.3 million, $30.1 million and $29.0 million, respectively; provided, further
that for the Fiscal Quarter ending June 30, 2004, Consolidated EBITDA for the
Restricted Group will be increased by the amount of unusual or nonrecurring
charges, fees or expenses (excluding integration expenses) relating to the
Transactions (including, without limitation, for severance payments and
retention bonuses) to the extent such charges, fees or expenses reduced
Consolidated EBITDA in such Fiscal Quarter (net of any offsetting items that
increased Consolidated EBITDA in such Fiscal Quarter as a result thereof) and to
give pro forma effect to the Transactions as if they had occurred on the first
day of such Fiscal Quarter in an aggregate amount not to exceed $12.0 million
(and any such amount shall be specified in reasonable detail in the Compliance
Certificate for the June 30, 2004 Fiscal Quarter delivered pursuant to Section
5.01).
"Consolidated Fixed Charges" means, with respect to the Restricted
Group for any period, the sum of (a) Cash Interest Expense of the Restricted
Group for such period, (b) the aggregate
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amount of cash dividends paid by CCI Illinois Holdings and CCI Texas Holdings
for such period, (c) the aggregate amount of scheduled principal payments in
respect of Indebtedness of the Restricted Group during such period, (d) the
aggregate amount of optional principal payments made during such period in
respect of Indebtedness of the Restricted Group for such period, to the extent
that such payments reduced any scheduled principal payments that would have
become due within one year after the date of the applicable payment, (e) Capital
Expenditures of the Restricted Group for such period to the extent made from
Internally Generated Funds, (f) the aggregate amount of federal, state and local
income taxes and franchise and other similar taxes and assessments imposed on
(or measured by) net income paid in cash by the Restricted Group during such
period (net of any cash refunds of such taxes received by them during such
period, to the extent that such refunds are not otherwise at any time reflected
in Consolidated Net Income), (g) the consolidated amount of fees actually paid
in cash during such period by members of the Restricted Group pursuant to the
Professional Services Fee Letters and (h) the aggregate amount of Restricted
Payments made pursuant to Section 6.07(iv).
"Consolidated Indebtedness" means, at a particular date, the
aggregate stated balance sheet amount of all Indebtedness of CCI Illinois
Holdings and CCI Texas Holdings determined on a combined consolidated basis in
accordance with GAAP at such date.
"Consolidated Interest Expense" means, with respect to CCI Illinois
Holdings and CCI Texas Holdings on a combined consolidated basis for any period,
the sum of (a) gross interest expense for such period, including (i) the
amortization of debt discounts, (ii) the amortization of all fees (including
fees with respect to Hedging Agreements) payable in connection with the
incurrence of Indebtedness to the extent included in interest expense and (iii)
the portion of any payments or accruals with respect to Capital Lease
Obligations allocable to interest expense, and (b) capitalized interest.
"Consolidated Net Income" means, for any period, the net income or
loss of CCI Illinois Holdings and CCI Texas Holdings for such period determined
on a combined consolidated basis in accordance with GAAP; provided that there
shall be excluded therefrom, without duplication, (i) the income or loss of any
Person (other than consolidated Subsidiaries of either of the Borrowers) in
which any other Person (other than the Borrowers or any of their Subsidiaries)
has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to either of the Borrowers or any of their
Subsidiaries by such Person during such period, (ii) the cumulative effect of a
change in accounting principles during such period, (iii) any net after-tax
income (loss) from discontinued operations and any net after-tax gains or losses
on disposal of discontinued operations, (iv) the income or loss of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with either of the Borrowers or any of their Subsidiaries or that
Person's assets are acquired by either of the Borrowers or any of their
Subsidiaries, (v) the income of any consolidated Subsidiary to the extent that
declaration of payment of dividends or similar distributions by that Subsidiary
of that income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary and (vi) the amount of
Restricted Payments made during such period pursuant to clause (xi) of Section
6.07.
"Consolidated Working Capital" means with respect to the Restricted
Group, at any date, the excess of Consolidated Current Assets of the Restricted
Group on such date over Consolidated Current Liabilities of the Restricted Group
on such date.
"consolidating" with respect to financial information shown on a
combined basis, shall mean an unaudited reconciliation setting forth
intercompany adjustments made in combining the consolidated financial
information of CCI Illinois Holdings and the consolidated financial information
of CCI Texas Holdings.
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"Contested Collateral Lien Conditions" means (a) with respect to any
proceeding instituted contesting any amount payable by any Loan Party or any of
its Subsidiaries, such proceeding operates to stay the sale or forfeiture of any
portion of the Collateral on account of such Lien; and (b) in the event the
amount of any such Lien shall exceed $2.0 million, the Loan Party or its
applicable Subsidiary shall either obtain a bond or maintain cash reserves, in
either case, in an amount sufficient to pay and discharge such Lien and the
Collateral Agent's reasonable estimate of all interest and penalties related
thereto.
"control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract or otherwise,
and "controlling" and "controlled" have meanings correlative thereto.
"Co-Syndication Agents" has the meaning assigned to such term in the
preamble hereto.
"Credit Event" has the meaning assigned to such term in Section
4.02.
"Cure Amount" has the meaning assigned to such term in Section 7.05.
"Cure Right" has the meaning assigned to such term in Section 7.05.
"Debt Incurrence" has the meaning assigned to such term in Section
2.05(c)(ii).
"Default" means any Event of Default, any Event of Termination and
any event or condition which upon notice, lapse of time or both would constitute
an Event of Default or Event of Termination.
"Destruction" means any and all damage to, or loss or destruction
of, or loss of title to, all or any portion of the Property of any member of the
Restricted Group.
"Documentation Agent" has the meaning assigned to such term in the
preamble hereto.
"Dollars" or "$" means lawful money of the United States of America.
"Domestic Subsidiary" means any Subsidiary of a Borrower that is not
a Non-U.S. Subsidiary.
"Effective Date" means April 14, 2004.
"Environment" means ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, natural resources such as flora and fauna, or as otherwise
defined in any applicable Environmental Law.
"Environmental Claim" means any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
other Person for damages, injunctive or equitable relief, personal injury
(including sickness, disease or death), Remedial Action costs, tangible or
intangible property damage, natural resource damages, nuisance, pollution, any
adverse effect on the Environment caused by any Hazardous Material, or for
fines, penalties or restrictions, resulting from or based upon: (a) the
existence, or the continuation of the existence, of a Release (including sudden
or non-sudden, accidental or non-accidental Releases); (b) exposure to any
Hazardous Material; (c) the presence, use, handling, transporta-
-10-
tion, storage, treatment or disposal of any Hazardous Material; or (d) the
violation or alleged violation of any Environmental Law or Environmental Permit.
"Environmental Laws" means any and all applicable treaties, laws
(including common law), rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the Environment,
preservation or reclamation of natural resources, the management, Release or
threatened Release of, or exposure to, any Hazardous Material or to health and
safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including, but not limited to, any liability for damages, natural
resource damage, costs of environmental remediation, administrative oversight
costs, fines, penalties or indemnities), of any member of the Restricted Group
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials or (d) the Release or threatened Release of any Hazardous Materials
into the Environment.
"Environmental Permit" means any permit, approval, authorization,
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Financing" means the issuance of Equity Interests of
Homebase to certain of the Permitted Holders on the Effective Date in exchange
for $89.0 million of cash from the Sponsors pursuant to the Homebase LLC
Agreement, the proceeds of which will be contributed through CCI Texas Holdings
to the TXU Borrower in order to fund a portion of the purchase price in the
Acquisition.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Equity Issuance" has the meaning assigned thereto in Section
2.05(c)(i).
"Equity Rights" means all securities convertible or exchangeable for
Equity Interests and all warrants, options or other rights to purchase or
subscribe for any Equity Interests, whether or not presently convertible,
exchangeable or exercisable.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as the same may be amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with any Loan Party, is treated as a single
employer under Sections 414(b) or (c) of the Code, and for the purpose of
Section 302 of ERISA and/or Section 412, 4971, 4977, 4980D, 4980E and/or each
"applicable section" under Section 414(t)(2) of the Code, within the meaning of
Section 414(b), (c), (m) or (o) of the Code.
"ERISA Event" means (a) any "reportable event," as defined in
Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a
Pension Plan (other than an event for which the 30-day notice period is waived
by regulation); (b) the existence with respect to any Pension Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, the failure to make by its due
date a required installment under Section 412(m) of the Code with respect to any
Pension Plan or the failure to make any required contribution to a Multiem-
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ployer Plan; (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Pension Plan; (d) the incurrence by any Loan Party or ERISA
Affiliate of any liability under Title IV of ERISA with respect to any Pension
Plan; (e) the receipt by any Loan Party or ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any
Pension Plan, to appoint a trustee to administer any Pension Plan, or to take
any other action with respect to a Pension Plan that could result in material
liability to a Loan Party or a Subsidiary, or the occurrence of any event or
condition which could reasonably be expected to constitute grounds under ERISA
for the termination of or the appointment of a trustee to administer, any
Pension Plan; (f) the incurrence by any Loan Party or ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal from any Pension
Plan or Multiemployer Plan; (g) the receipt by a Loan Party or ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the making of
any amendment to any Pension Plan which could result in the imposition of a lien
or the posting of a bond or other security; or (i) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which could result in liability to a Loan Party or any of
the Subsidiaries.
"Eurodollar Borrowing" means a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" means any Loan bearing interest at a rate
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Event of Default" has the meaning assigned to such term in Section
7.01.
"Event of Termination" has the meaning assigned to such term in
Section 7.01.
"Excess Cash Flow" means, without duplication, with respect to the
Restricted Group for any Excess Cash Flow Period:
(a) Consolidated Net Income (without giving effect to clause (iii)
of the definition thereof with respect to any cash net after-tax income
(loss) from discontinued operations or after-tax gain or loss on disposal
of discontinued operations) adjusted to exclude any amount of gain or loss
included in both (x) Consolidated Net Income and (y) Net Proceeds actually
applied to the prepayment of the Loans pursuant to Section 2.05(c)(iii) or
(iv), plus
(b) the amount of depreciation, amortization of intangibles,
deferred taxes and other non-cash expenses which, pursuant to GAAP, were
deducted in determining such Consolidated Net Income, plus
(c) decreases in Consolidated Working Capital, minus
(d) increases in Consolidated Working Capital, minus
(e) the amount of Capital Expenditures made from Internally
Generated Funds, minus
(f) payments of principal under the Term A Loans, Term B Loans
(prior to the Restatement Effective Date) and Term C Loans on the Term A
Installment Dates, Term B Installment Dates and Term C Installment Dates
pursuant to Section 2.05(d) (and, in the case of Term B Loans, pursuant to
Section 2.05(d) of the Original Credit Agreement) during such period to
the extent funded with Internally Generated Funds, minus
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(g) to the extent such amounts were not deducted in determining
Consolidated Net Income, fees (i) paid in cash during such period or (ii)
accrued during such period and paid in cash prior to the date of required
prepayment from Excess Cash Flow pursuant to Section 2.05(c)(v), in each
case, under the Professional Services Fee Letters in an aggregate amount
not to exceed $5.0 million in any 12 month period (it being understood
that any such amount which has reduced Excess Cash Flow in one Excess Cash
Flow Period shall not reduce Excess Cash Flow in any subsequent Excess
Cash Flow Period), minus
(h) optional prepayments of principal under the Term A Loans and
Term C Loans made during such period to the extent funded with Internally
Generated Funds.
For purposes of the foregoing and without duplication, Consolidated
Net Income will exclude (x) all losses on the sale of capital assets or losses
which are out of the ordinary course of business and (y) all write-downs of
capital assets.
"Excess Cash Flow Period" means the period commencing on and
including January 1 of each Fiscal Year and ending on and including December 31
of such Fiscal Year; provided, that for the 2004 Fiscal Year, the Excess Cash
Period shall commence on and include the Effective Date and end on and include
December 31, 2004.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Debt Issuance" means any incurrence of Indebtedness
permitted by Section 6.01(a).
"Excluded Equity Issuances" means (x) the Equity Financing, (y) the
issuance of Equity Interests or Equity Rights of Homebase or any other direct or
indirect common parent company of CCI Texas Holdings and CCI Illinois Holdings
to the extent the Net Proceeds therefrom are used (i) to make a contribution to
the CCI Borrower and/or the TXU Borrower in connection with the exercise of a
Cure Right pursuant to Section 7.05 or (ii) to make an equity contribution to
any member of the Restricted Group to finance all or a portion of any Permitted
Acquisition and (z) the issuance of Equity Interests or Equity Rights of
Homebase or any other direct or indirect common parent company of CCI Texas
Holdings and CCI Illinois Holdings to one or more of the Permitted Holders, to
the extent the Net Proceeds therefrom are used to make a contribution to any
Subsidiary of such Person that is not a member of the Restricted Group.
"Federal Funds Rate" means, for any day, the weighted average of the
rates (rounded upwards, if necessary, to the nearest 1/100th of 1%) 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; provided that (a) if the day for which
such rate is to be determined is not a Business Day, the Federal Funds Rate for
such day shall be such rate for such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if such rate is
not so published for any day which is a Business Day, the Federal Funds Rate for
such day shall be 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.
"Fee Letter" means the Fee Letter dated January 15, 2004 among the
Administrative Agent, the Joint Lead Arrangers, the Documentation Agent,
Deutsche Bank Securities Inc., Deutsche Bank AG Cayman Islands Branch and the
Borrowers and the Fee Letter dated as of October 7, 2004 among the
Administrative Agent, the Joint Lead Arrangers and the Borrowers.
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"Fee Percentage" means, with respect to the CCI Borrower, 50% and,
with respect to the TXU Borrower, 50%.
"Fees" means the Commitment Fees, the LC Fees and the Agent Fees.
"Financial Covenants" means those covenants and agreements of the
Loan Parties set forth in Sections 6.11 through 6.15, inclusive.
"Financial Officer" of any corporation, partnership or other entity
means the chief financial officer, the principal accounting officer, Treasurer
or Controller (or person having an analogous title) of such corporation,
partnership or other entity.
"Financing Documents" means the Loan Documents, the Homebase LLC
Agreement (but only for so long as Homebase is a Loan Party) and the Notes
Documents.
"Financing Transactions" means, collectively, (i) the execution and
delivery by each Loan Party of each of the Loan Documents and the Borrowing of
the Term A Loans and the Term B Loans and Revolving Loans hereunder in each case
on the Effective Date, (ii) the issuance of the Senior Notes on the Effective
Date, (iii) the Equity Financing and (iv) the repayment of the Indebtedness to
Be Paid.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "2004 Fiscal Year") refer to the Fiscal Year
ending on December 31 occurring during such calendar year.
"Fixed Charge Coverage Ratio" means for any period the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Fixed Charges for such
period. For Test Periods ending prior to the one year anniversary of the
Effective Date, Consolidated Fixed Charges shall be determined on a pro forma
basis to give effect to the Transactions as if they had occurred on the first
day of such Test Period except that (i) clause (e) of the definition of
"Consolidated Fixed Charges" will be determined on an actual historical basis
(and using the historical consolidated financial information of TXUCV and the
CCI Borrower in the case of periods prior to the Effective Date) and (ii) clause
(c) of the definition of "Consolidated Fixed Charges" will be based on the
average quarterly scheduled repayments of principal during the first calendar
year following the Effective Date.
"Foreign Plan" means any employee benefit plan, program, policy,
arrangement or agreement maintained or contributed to outside the United States
by any Loan Party or any of its Subsidiaries primarily for the benefit of
employees of any Loan Party or any of its Subsidiaries employed outside the
United States.
"GAAP" means, subject to Section 1.03, generally accepted accounting
principles in the United States applied on a consistent basis.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental agency, authority, instrumentality or regulatory body,
including any central bank, including, without limitation, the Federal
Communications Commission, the Texas Public Utilities Commission and the ICC.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness
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or other obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof (including pursuant to a "synthetic lease"), (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business. The amount of the
obligation under any Guarantee 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 is made (including principal, interest and fees) and (b)
the maximum amount for which such guarantor may be liable pursuant to the terms
of the instrument embodying such Guarantee, unless such primary obligation and
the maximum amount for which such guarantor may be liable are not stated or
determinable, in which case the amount of the obligation under such Guarantee
shall be such guarantor's maximum reasonably anticipated liability in respect
thereof as determined by the guarantor in good faith; irrespective, in any such
case, of any amount thereof that would, in accordance with GAAP, be required to
be reflected on a balance sheet of such Person.
"Guarantee Agreements" means, collectively, the CCI Illinois
Borrower Group Guarantee Agreement, the CCI Texas Borrower Group Guarantee
Agreement, the Homebase Pledge and Guarantee Agreement and, if executed, the
ICTC Security and Guarantee Agreement.
"Hazardous Materials" means all pollutants, contaminants, wastes,
substances, chemicals, materials and constituents, including without limitation,
crude oil, petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls ("PCBs") or PCB-containing materials or
equipment of any nature which can give rise to Environmental Liability under, or
are regulated pursuant to, any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
and all other similar agreements or arrangements designed to alter the risks of
any Person arising from fluctuations in interest rate, currency values or
commodity prices.
"Homebase" means Homebase Acquisition, LLC, a Delaware limited
liability company.
"Homebase LLC Agreement" means the Second Amended and Restated
Limited Liability Company Agreement, dated January 15, 2004, among Homebase and
the equity holders named therein, as the same may be amended in accordance with
the terms of this Agreement.
"Homebase Pledge and Guarantee Agreement" means the Pledge and
Guarantee Agreement, substantially in the form of Exhibit I-2 to the Original
Credit Agreement.
"ICC" means the Illinois Commerce Commission and any successor
organization performing similar regulatory functions.
"ICTC" means Illinois Consolidated Telephone Company, an Illinois
corporation.
"ICTC Security and Guarantee Agreement" means an agreement, in the
form and on the terms approved by the ICC and the Administrative Agent, pursuant
to which ICTC guarantees a portion
-15-
of the obligations of the CCI Borrower under the Loan Documents to which it is a
party and grants a security interest in its assets to the Collateral Agent.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Restricted Group, any qualification or exception to such opinion or
certification:
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause
the Borrowers to be in Default under any Financial Covenant.
"Increased Cost Lender" has the meaning assigned thereto in Section
2.20.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid (excluding obligations to pay
salary or benefits under deferred compensation or other benefit programs), (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness (excluding prepaid interest thereon) of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness or other
financial obligations of others, (h) all Capital Lease Obligations of such
Person, (i) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (j)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances, surety bonds and performance bonds, whether or not matured. 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 directly 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 provide that such Person is not liable
therefor.
"Indebtedness to Be Paid" has the meaning set forth in Section
3.21(b).
"Indebtedness to Remain Outstanding" has the meaning set forth in
Section 3.21(a).
"Indemnity Payment" means any payment received by the TXU Borrower
or any other Restricted Group Member under any escrow arrangement under any
Acquisition Document or as a direct or indirect result of any breach of any term
or provision of the Acquisition Documents or otherwise in respect of any claim
by the TXU Borrower or any other Restricted Group Member arising out of the
Acquisition (other than to the extent relating to indemnification or
reimbursement of amounts paid by the Loan Parties to persons other than the Loan
Parties).
"Information Memorandum" means (i) the Confidential Information
Memorandum dated as of March 2004 and posted electronically on Intralinks
relating to the Loan Parties and their Subsidiar-
-16-
ies and this Agreement and (ii) the Offering Circular of CCI Illinois Holdings
and CCI Texas Holdings dated April 2, 2004 related to the Senior Notes.
"Interest Expense Coverage Ratio" means, for any Test Period, the
ratio of (a) Consolidated EBITDA to (b) Cash Interest Expense, in each case for
such Test Period.
"Interest Payment Date" means, with respect to any Loan, the last
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurodollar Borrowing with an Interest Period of more
than three months' duration, (a) each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing and, in addition, (b) the date of any refinancing
of such Borrowing with a Borrowing of a different Type.
"Interest Period" means (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing (including any date on which
such Borrowing shall have been converted from a Borrowing of a different Type)
or on the last day of the immediately preceding Interest Period applicable to
such Borrowing, as the case may be, and (except as provided in Section 2.02(a))
ending on the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months (or if available to all Lenders, 9 or 12 months) thereafter, as the
applicable Borrower may elect, or (b) as to any ABR Borrowing (other than a
Swingline Borrowing), the period commencing on the date of such Borrowing
(including any date on which such Borrowing shall have been converted from a
Borrowing of a different Type) or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case may be, and ending on
the earliest of (i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Term C Maturity Date and (iii) the date such Borrowing is
paid or prepaid in accordance with Section 2.05 or converted in accordance with
Section 2.03 and (c) as to any Swingline Loan, a period commencing on the date
of such Loan and ending on the earliest of (i) the fifth Business Day
thereafter, (ii) the Revolving Credit Maturity Date and (iii) the date such Loan
is prepaid in accordance with Section 2.05; provided that if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless, in the case of a Eurodollar
Borrowing only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day. Interest shall accrue from and including the first day
of an Interest Period to but excluding the last day of such Interest Period.
"Intermediate Holdco" has the meaning assigned to such term in the
definition of "Change in Control."
"Internally Generated Funds" shall mean funds not constituting the
proceeds of any Debt Incurrence, Equity Issuance, Asset Sale or insurance
recovery.
"Investment" has the meaning assigned to such term in Section 6.04.
"Issuing Bank" means Credit Suisse First Boston, acting through its
Cayman Islands Branch, in its capacity as the issuer of Letters of Credit
hereunder, and its successors in such capacity as provided in Section 2.06(i),
and any other Revolving Lender approved by the Administrative Agent and the
Borrowers. The Issuing Bank may, in its discretion, arrange for one or more
Letters of Credit to be issued by Affiliates of the Issuing Bank, in which case
the term "Issuing Bank" shall include any such Affiliate with respect to Letters
of Credit issued by such Affiliate.
"Joint Lead Arrangers" has the meaning assigned to such term in the
preamble hereto.
-17-
"LC Disbursement" means a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of either Borrower at such time. The LC Exposure of any Revolving
Lender at any time shall be its Commitment Percentage of the total LC Exposure
at such time.
"LC Fees" has the meaning assigned to such term in Section 2.10(b).
"Lender Addendum" means, with respect to any Term C Lender, a Lender
Addendum in a form approved by the Administrative Agent and the Borrowers
pusuant to which such Term C Lender, has agreed to make Term C Loans to the
Borrowers under this Agreement on the Restatement Effective Date in the manner
contemplated by Section 1.04(c) in an amount not to exceed such Lenders' Term C
Commitment.
"Lender Affiliate" means (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) any entity (whether a corporation, partnership,
trust or otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary course
of its business and is administered or managed by a Lender or an Affiliate of
such Lender and (b) with respect to any Lender that is a fund which invests in
bank loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Lenders" has the meaning assigned to such term in the preamble
hereto.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for Dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate supplied to the
Administrative Agent at its request quoted by the Reference Banks in the London
interbank market as of the day two Business Days prior to the commencement of
such Interest Period as the rate for Dollar deposits with a maturity comparable
to such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, deed to secure debt, lien, pledge, encumbrance, charge, assignment,
hypothecation or security interest in or on such asset or any filing of any
financing statement under the UCC as in effect in the applicable state or
jurisdiction or any other similar notice or lien under any similar notice or
recording statute of any Governmental Authority, in each of the foregoing cases
whether voluntary or imposed by law, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention agreement
relating to such asset, (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities, (d) in the
case of any investment property or deposit account, any contract or other
agreement, express or implied, under which any Person has the right to control
such investment property or deposit account and (e) any other agreement intended
to create any of the foregoing.
-18-
"Loan Documents" means this Agreement, each Acknowledgment of
Limitation on Remedies, the Professional Services Fee Subordination Agreement,
the Guarantee Agreements, the Security Documents, if requested by a Lender
pursuant to Section 2.07(e), each Note and, solely for purposes of Section
7.01(a), the Fee Letter.
"Loan Parties" means Homebase (until such time, if any, as Homebase
shall form an Intermediate Holdco, and shall have been released from the
Homebase Pledge and Guarantee Agreement in accordance with Section 5.12(b),
after which time the term "Loan Parties" shall include such Intermediate Holdco
but not Homebase), CCI Illinois Holdings, CCI Texas Holdings, the Borrowers and
the Subsidiary Loan Parties.
"Loans" means the Revolving Loans, the Swingline Loans, the Term A
Loans, the Term B Loans and the Term C Loans.
"Material Adverse Effect" means a materially adverse effect on (a)
the business, results of operations or condition (financial or otherwise) of the
Restricted Group, taken as a whole, or (b) the ability of any Loan Party to
perform its obligations under the Loan Documents to which it is a party, (c) the
rights of or benefits available to the Lenders under any Loan Document or (d)
the value of the Collateral or the validity, enforceability, perfection or
priority of the Liens granted to the Collateral Agent (for its benefit and for
the benefit of the other Secured Parties) on the Collateral pursuant to the
Security Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any member or members of the Restricted Group, individually or in an
aggregate principal amount exceeding $5.0 million. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of any member
of the Restricted Group in respect of any Hedging Agreement at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that such
member of the Restricted Group would be required to pay if such Hedging
Agreement were terminated at such time.
"Maximum Rate" has the meaning assigned to such term in Section
9.09.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations, including any amendment thereto.
Each Mortgage shall be substantially in the form of Exhibit M to the Original
Credit Agreement or otherwise satisfactory in form and substance to the
Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real property
and the improvements thereto owned or leased by a Loan Party and identified on
Schedule 5.19(a)(i) of the Original Credit Agreement, and includes each other
parcel of real property and improvements thereto with respect to which a
Mortgage is granted pursuant to Section 5.11 or Section 5.12.
"Multiemployer Plan" means a multiemployer plan within the meaning
of Section 4001(a)(3) of ERISA (i) to which any Loan Party or ERISA Affiliate is
then making or accruing an obligation to make contributions, (ii) to which any
Loan Party or ERISA Affiliate has within the preceding six plan years made
contributions, including any Person which ceased to be an ERISA Affiliate during
such six year period, or (iii) with respect to which Loan Party or any
Subsidiary could incur liability.
-19-
"Net Proceeds" means, with respect to any Equity Issuance, Debt
Incurrence, Asset Sale, Destruction, Taking or Indemnity Payment, (a) the cash
proceeds actually received in respect of such event, including (i) any cash
received in respect of any non-cash proceeds, but only as and when received,
(ii) in the case of a Destruction, insurance proceeds in excess of $1.0 million,
and (iii) in the case of a Taking, condemnation awards and similar payments in
excess of $1.0 million, net of (b) the sum of (i) all reasonable fees and
out-of-pocket expenses paid by the Loan Parties and their Subsidiaries to third
parties in connection with such event, (ii) the amount of all taxes paid (or
reasonably estimated to be payable) by the Loan Parties and their Subsidiaries,
and (iii) in the case of an Asset Sale, the amount of all payments required to
be made by the Loan Parties and their Subsidiaries as a result of such event to
repay Indebtedness (other than Loans) secured by a Permitted Lien ranking prior
to the Liens securing the Obligations on such asset and the amount of any
reserves established by the Loan Parties and their Subsidiaries to fund
contingent liabilities reasonably estimated to be payable, in each case during
the year that such event occurred or the next succeeding two years, and that are
directly attributable to such event (as reasonably determined by the Borrowers);
provided that any amount by which such reserves are reduced for reasons other
than payment of any such contingent liabilities shall be considered "Net
Proceeds" upon such reduction.
"90% Owned Subsidiary" means any Domestic Subsidiary at least 90% of
the Equity Interests of which are owned by the Borrowers and/or one or more
wholly owned Subsidiaries of the Borrowers.
"Non-U.S. Jurisdiction" means each jurisdiction of organization of a
Subsidiary of Homebase other than the United States (or any State thereof) or
the District of Columbia.
"Non-U.S. Subsidiary" means any Subsidiary of either Borrower
that is or becomes organized under the laws of a Non-U.S. Jurisdiction.
"Note" means a note substantially in the form of Exhibit F-1, F-2 or
F-3 to the Original Agreement; provided, that in the case of Exhibit F-2 to the
Original Credit Agreement, the reference therein to (i) "Term B Loans" is hereby
amended to refer to "Term C Loans", (ii) the "Term B Loan Maturity Date" is
hereby amended to refer to the "Term C Loan Maturity Date" and (iii) "Term B
Note" is hereby amended to refer to "Term C Note."
"Obligations" means (a) the unpaid principal of and interest on
(including interest accruing after the maturity of the Loans made to either
Borrower and interest accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to either Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) the Loans made to or LC
Disbursements made pursuant to Letters of Credit issued for the account of
either Borrower and all other obligations and liabilities of either Borrower to
any Agent, the Issuing Bank or to 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
or any other document made, delivered or given in connection herewith, whether
on account of principal, interest, fees, indemnities, costs or expenses
(including, without limitation, all reasonable fees, charges and disbursements
of counsel), or otherwise, and (b) the due and punctual payment and performance
by each Borrower and each other Loan Party under (i) each Hedging Agreement
relating to the Loans entered into with any counterparty that was a Lender or an
Affiliate of a Lender at the time such Hedging Agreement was entered into and
(ii) the Hedging Agreements set forth on Schedule 3.21(a) of the Original Credit
Agreement.
"Organic Document" means (i) relative to each Person that is a
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its
-20-
authorized shares of capital stock, (ii) relative to each Person that is a
partnership, its partnership agreement and any other similar arrangements
applicable to any partnership or other Equity Interests in the Person, (iii)
relative to each Person that is a limited liability company, its limited
liability company agreement and any other similar arrangements applicable to
such limited liability company or other Equity Interests in such Person, and
(iv) relative to any Person that is any other type of legal entity, such
documents as shall be comparable to the foregoing.
"Participant" has the meaning assigned to such term in Section
9.04(f).
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA.
"Pension Plan" means a "pension plan," as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan) and to which any Loan Party or any ERISA Affiliate may have
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.
"Perfection Certificate" means a certificate in the form of Annex 2
to the Security Agreement or any other form approved by the Collateral Agent.
"Permitted Acquisition" means any acquisition by a Borrower or a
Subsidiary Loan Party of a Person, business or division relating to a business
(or in the case of the acquisition of a Person, substantially all of such
Person's activities constitute a business permitted to be conducted by the
Borrowers and their Subsidiaries in accordance with Section 6.03) permitted to
be conducted by the Borrowers and their Subsidiaries in accordance with Section
6.03, provided that the following conditions are met: (i) immediately prior to,
and after giving effect to, such acquisition on a pro forma basis (with
adjustments permitted by Regulation S-X under the Exchange Act) as if such
acquisition had been consummated on the first day of the immediately preceding
Test Period, the Borrowers would be in compliance with the Financial Covenants,
(ii) either (x) the consideration paid by the Loan Parties and their
Subsidiaries in such acquisition consists solely of Equity Interests of
Homebase, an Intermediate Holdco or a Super Holdco or (y) if such acquisition
involves any cash or other Property (or the assumption of any Indebtedness by a
Loan Party or any Subsidiary of a Loan Party) of a Loan Party or a Subsidiary of
a Loan Party (I) the fair market value of all cash and other Property paid and
Indebtedness assumed by the Loan Parties and their Subsidiaries is less than
$150.0 million in the aggregate following the Effective Date (it being
understood that, to the extent that Available Proceeds are available to make an
Investment pursuant to Section 6.04(xii), the Borrowers may also elect to expend
such Available Proceeds pursuant to Section 6.04(xii)) and (II) immediately
after giving effect to such acquisition on a pro forma basis (with adjustments
permitted by Regulation S-X under the Exchange Act) as if such acquisition had
been consummated on the first day of the immediately preceding Test Period, the
Total Net Leverage Ratio of the Restricted Group would have been less than
5.0:1.0; (iii) any Person acquired in such acquisition becomes a Subsidiary Loan
Party and grants a security interest in its assets to the extent required by
Section 5.11 or if such acquisition consists of Property other than Equity
Interests of a Person that becomes a Subsidiary, the Borrowers or the Subsidiary
Loan Parties acquiring such Property comply with Section 5.11; and (iv) such
acquisition was not commenced or at any time conducted as a "hostile"
transaction.
"Permitted Asset Swap" means a transfer of assets consisting
primarily of local exchange carrier access lines and related assets by a Loan
Party in which the consideration received therefrom consists of assets
consisting primarily of local exchange carrier access lines and related assets
(other than cash) that will be used in its business; provided that (x) the fair
market value (as determined in good faith by the board of directors of such Loan
Party) of the assets so transferred shall not exceed the fair market
-21-
value (determined as provided in the preceding parenthetical) of the assets so
received and (y) the fair market value (as determined in good faith by the board
of directors of such Loan Party) of the assets transferred pursuant to all such
transactions following the Effective Date shall not exceed (determined solely as
of the date of any transfer) 15% of consolidated tangible assets (as shown on
the combined consolidated balance sheet of CCI Illinois Holdings and CCI Texas
Holdings most recently delivered to the Lenders and the Administrative Agent
pursuant to Section 5.01).
"Permitted Cure Security" means Equity Interests of Homebase or any
direct or indirect common parent company of CCI Illinois Holdings and CCI Texas
Holdings that (i) in the case of Equity Interests of Homebase, are subject to an
Acknowledgment of Limitation on Remedies or (ii) have no mandatory redemption,
repurchase or similar requirements (including upon the happening of any
contingency) prior to the date which is 91 days after the Term C Loan Maturity
Date and upon which all dividends or distributions, at the election of Homebase
(or, in the event that an Intermediate Holdco has been formed, such Intermediate
Holdco), may be paid either (i) in additional shares of such Equity Interests or
(ii) through the accrual of such dividends or distributions.
"Permitted Holders" means (i) any of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, his spouse,
ancestors, siblings, descendants (including children or grandchildren by
adoption) and the descendants of any of his siblings; (ii) in the event of the
incompetence or death of any of the Persons described in clause (i), such
Person's estate, executor, administrator, committee or other personal
representative, in each case who at any particular date shall beneficially own
or have the right to acquire, directly or indirectly, Equity Interests of
Homebase (or, in the event a Super Holdco has been formed, such Super Holdco);
(iii) any trust created for the benefit of the Persons described in clause (i)
or (ii) or any trust for the benefit of any such trust; (iv) any investment
entity a majority of the voting Equity Interests of which are owned by any of
the Persons described in clause (i), (ii) or (iii); or (v) Providence Equity
Partners IV, L.P., Spectrum Equity Investors III, L.P., Spectrum Equity
Investors IV and their controlled Affiliates that are investment funds. For
purposes of this definition, "control," as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through ownership of voting securities or by contract or otherwise.
"Permitted Investments" means:
(a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency or
instrumentality thereof and backed by the full faith and credit of the
United States of America, in each case maturing within one year from the
date of acquisition thereof;
(b) marketable direct obligations issued by any State of the United
States of America or any political subdivision of any such State or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or ▇▇▇▇▇'▇;
(c) commercial paper maturing no more than nine months from the date
of creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from ▇▇▇▇▇'▇;
(d) time deposits, demand deposits, certificates of deposit,
Eurodollar time deposits or bankers' acceptances maturing within one year
from the date of acquisition thereof or overnight bank deposits, in each
case, issued by any bank organized under the laws of the United States of
America or any State thereof or the District of Columbia or any U.S.
branch of a foreign
-22-
bank having at the date of acquisition thereof combined capital and
surplus of not less than $500.0 million;
(e) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (a) above entered
into with any bank meeting the qualifications specified in clause (d)
above;
(f) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (a) through
(e) above; and
(g) demand deposits with First Mid-Illinois Bank & Trust, N.A.,
Mattoon, Illinois; and
(h) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (a) above (which
repurchase obligations are secured by the underlying security) entered
into with First Mid-Illinois Bank & Trust, N.A., Mattoon, Illinois.
"Permitted Lien" has the meaning assigned to such term in Section
6.02.
"Permitted Refinancing" shall mean, with respect to any
Indebtedness, any refinancing thereof; provided, however, that (i) no Default
shall have occurred and be continuing or would arise therefrom, (ii) any such
refinancing Indebtedness shall (a) either (x) not have covenants, defaults,
rights or remedies more burdensome in the aggregate to the obligor than the
Indebtedness being refinanced or (y) not have covenants, defaults, rights or
remedies more burdensome than the corresponding provisions of the Credit
Agreement, (b) not have a stated maturity or Weighted Average Life to Maturity
that is shorter than the Indebtedness being refinanced, (c) be at least as
subordinate to the Obligations as the Indebtedness being refinanced (and
unsecured if the refinanced Indebtedness is unsecured), (d) not require the
payment of cash interest earlier than was required by the terms of the
Indebtedness being refinanced, and (e) be in an initial principal amount that
does not exceed the principal amount so refinanced, plus all accrued and unpaid
interest thereon, plus the stated amount of any premium and other payments
required to be paid in connection with such refinancing pursuant to the terms of
the Indebtedness being refinanced, plus in either case, the amount of reasonable
expenses of the Loan Parties or any of their Subsidiaries incurred in connection
with such refinancing, and (iii) the sole obligors and/or guarantors on such
refinancing Indebtedness shall be the obligors and/or guarantors on such
Indebtedness being refinanced.
"Person" means any natural person, corporation, trust, joint
venture, association, company, partnership, limited liability company or
government, or any agency or political subdivision thereof.
"Plan" means any Pension Plan or Welfare Plan.
"Platform" has the meaning assigned to such term in Section 9.17(b).
"Pledge Agreement" means the Pledge Agreement, substantially in the
form of Exhibit I-1 to the Original Credit Agreement.
"Pledged Securities" has the meaning provided in the Pledge
Agreement.
"Preferred Stock" means, with respect to any Person, any and all
preferred or preference Equity Interests (however designated) of such Person
whether or not outstanding or issued on the Effective Date.
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"Prepayment Date" has the meaning assigned to such term in Section
2.05(f).
"Prior Liens" shall mean, with respect to each Mortgaged Property,
the exceptions to title described in Schedule B to the Title Policy insuring the
Lien of the Mortgage thereon.
"Pro Rata Percentage" of any Revolving Lender at any time means the
percentage of the aggregate Available Revolving Credit Commitment represented by
such Lender's Available Revolving Credit Commitment.
"Professional Services Fee Letters" means the amended and restated
Professional Services Fee Letter dated as of the Effective Date among the CCI
Borrower, Homebase, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Providence Equity Partners IV, Inc. and
Applegate & ▇▇▇▇▇▇▇▇, Inc. and the Professional Services Fee Letter dated as of
the Effective Date among the TXU Borrower, Homebase, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Providence Equity Partners IV, Inc. and Applegate & ▇▇▇▇▇▇▇▇, Inc.
"Professional Services Fee Subordination Agreement" means the
Professional Services Fee Subordination Agreement dated as of the Effective Date
among Providence Equity Partners, Inc., Applegate & ▇▇▇▇▇▇▇▇, Inc., ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and the Administrative Agent in the form of Exhibit O to the Original
Credit Agreement.
"Projected Financial Statements" has the meaning assigned to such
term in Section 3.16(c).
"Property" means any right, title or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible or intangible and including any ownership interests of any Person.
"Public Equity Offering" means an underwritten public offering of
common stock of a common corporate parent of the Borrowers pursuant to an
effective registration statement under the Securities Act.
"Public Market" means any time after (a) a Public Equity Offering
has been consummated and (b) at least 15% of the total issued and outstanding
common stock of a corporate parent of the Borrowers has been distributed by
means of an effective registration statement under the Securities Act or sales
pursuant to Rule 144 under the Securities Act.
"Real Property" means all right, title and interest of any
Restricted Group Member or any of its respective Domestic Subsidiaries in and to
a parcel of real property owned, leased or operated (including, without
limitation, any leasehold estate) by any Loan Party or any of its respective
Domestic Subsidiaries together with, in each case, all improvements and
appurtenant fixtures, equipment, personal property, easements and other property
and rights incidental to the ownership, lease or operation thereof.
"Reference Banks" means:
(a) in connection with the initial syndication of the Loans and
Commitments, in respect of LIBO Rate, the principal London office of
Citibank, N.A.; and
(b) in respect of LIBO Rate, the principal London office of
Citibank, N.A. and such two other banks as may be appointed by the
Administrative Agent in consultation with the Borrowers.
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"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation U" means Regulation U of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time
in effect and all official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, trustees, employees,
agents and advisors of such Person and such Person's Affiliates.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"Remedial Action" means (a) "remedial action" as such term is
defined in CERCLA, 42 USC Section 9601(24), and (b) all other actions required
by any Governmental Authority or voluntarily undertaken to: (i) clean up,
remove, treat, ▇▇▇▇▇ or otherwise take corrective action to address any
Hazardous Material in the Environment; (ii) prevent the Release or threat of
Release, or minimize the further Release of any Hazardous Material so it does
not migrate or endanger or threaten to endanger public health, welfare or the
Environment; or (iii) perform studies and investigations in connection with, or
as a precondition to, (i) or (ii) above.
"Requirement of Law" means, as to any Person, 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 assets or to which such Person or any of its property or assets is
subject.
"Requisite Class Lenders" means, at any time of determination, (i)
for the Class of Term A Lenders, Term A Lenders holding more than 50% of the
aggregate Term A Loans of all Term A Lenders; (ii) for the Class of Term C
Lenders, Term C Lenders holding more than 50% of the aggregate Term C Loans of
all Term C Lenders; and (iii) for the Class of Revolving Lenders, Revolving
Lenders holding more than 50% of the aggregate outstanding amount of the
Revolving Credit Commitments or, after the Revolving Credit Maturity Date, the
Revolving Credit Exposure of all Revolving Lenders.
"Requisite Lenders" means, at any time, Lenders having more than
fifty percent (50%) of the sum of (a) the aggregate amount of the Revolving
Credit Commitments or, after the Revolving Credit Maturity Date, the Revolving
Credit Exposure, (b) the aggregate outstanding amount of all Term A Loans and
(c) the aggregate outstanding amount of all Term C Loans.
"Requisite Revolving Lenders" means, collectively, Revolving Lenders
having more than fifty percent (50%) of the aggregate outstanding amount of the
Revolving Credit Commitments or, after the Revolving Credit Maturity Date, the
Revolving Credit Exposure.
"Restatement Effective Date" See Section 4.01.
"Restricted Group" means CCI Illinois Holdings, CCI Texas Holdings
and each of their respective Subsidiaries.
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"Restricted Payment" means any direct or indirect dividend or other
distribution (whether in cash, securities or other property) with respect to any
Equity Interests or Equity Rights in any member of the Restricted Group, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests or Equity
Rights in any member of the Restricted Group.
"Revolving Credit Borrowing" means a Borrowing comprised of
Revolving Loans.
"Revolving Credit Borrowing Request" means a Borrowing Request in
connection with a Revolving Credit Borrowing.
"Revolving Credit Commitment" means, with respect to each Revolving
Lender, the commitment of such Revolving Lender to make Revolving Loans and to
acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed in each case as an amount representing the maximum principal amount of
such Revolving Lender's Revolving Credit Exposure hereunder, as the same may be
reduced from time to time pursuant to the provisions of this Agreement. The
initial amount of each Revolving Lender's Revolving Credit Commitment is set
forth on Schedule 2.01 of the Original Credit Agreement (in the case of
Revolving Credit Commitments in effect on the Effective Date), or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Credit Commitment, as applicable. The aggregate amount of the
Revolving Lenders' Revolving Credit Commitments as of the Restatement Effective
Date is $30.0 million.
"Revolving Credit Commitment Period" means the period from and
including the Effective Date to but not including the Revolving Credit Maturity
Date or any earlier date on which the Revolving Credit Commitments to make
Revolving Loans pursuant to Section 2.01 shall terminate as provided herein.
"Revolving Credit Exposure" means with respect to any Revolving
Lender at any time, the sum of (a) the aggregate principal amount at such time
of all outstanding Revolving Loans of such Revolving Lender, plus (b) such
Revolving Lender's LC Exposure at such time, plus (c) such Revolving Lender's
Commitment Percentage of the aggregate principal amount at such time of all
outstanding Swingline Loans. "Revolving Credit Maturity Date" means April 14,
2010.
"Revolving Lender" means a Lender with a commitment to make
Revolving Loans or with any Revolving Credit Exposure, in its capacity as such.
"Revolving Loans" means the revolving loans made pursuant to clause
(ii) of Section 2.01(a).
"S&P" means Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" has the meaning assigned to such term in the
Security Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement, substantially in
the form of Exhibit J to the Original Credit Agreement.
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"Security Documents" means the Security Agreement, the Pledge
Agreement, the Homebase Pledge and Guarantee Agreement, the ICTC Security and
Guarantee Agreement (if entered into), the Mortgages and the Perfection
Certificate executed by the Loan Parties and each other security agreement or
other instrument or document executed and delivered pursuant to Section 5.11,
5.12 or 5.16 to secure any of the Obligations.
"Senior Notes" means $200.0 million aggregate principal amount of
9.75% Senior Notes due 2012 of CCI Illinois Holdings and CCI Texas Holdings
issued on the Effective Date, including the senior notes to be issued pursuant
to a registered exchange offer therefor as contemplated in the offering document
for the Senior Notes.
"Senior Notes Documents" shall mean the Senior Notes, the Senior
Notes Indenture and all other material documents executed and delivered with
respect to the Senior Notes or the Senior Notes Indenture (other than the
Homebase Pledge and Guarantee Agreement), as in effect on the Effective Date and
as the same may be modified, supplemented, restated and/or amended from time to
time in accordance with the terms hereof and thereof.
"Senior Notes Indenture" shall mean the Indenture, dated as of the
Effective Date, between CCI Illinois Holdings, CCI Texas Holdings and ▇▇▇▇▇
Fargo Bank, N.A., as trustee, as in effect on the Effective Date and as the same
may be modified, supplemented and/or amended from time to time in accordance
with the terms hereof and thereof.
"Senior Secured Leverage Ratio" means, at any date, the ratio of (a)
Consolidated Indebtedness of members of the Restricted Group of the types
referred to in clauses (a)(i), (a)(iii), (a)(ix), (a)(x) and (a)(xvii) of
Section 6.01 (in each case, to the extent that any such Indebtedness is secured
by a Lien on any assets or property of any member of the Restricted Group) as of
such date to (b) Consolidated EBITDA for the Test Period most recently ended.
"Statutory Reserve Rate" means a fraction (expressed as a decimal)
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate (expressed as a decimal) of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by any Governmental Authority of
the United States or of the jurisdiction of such currency or any jurisdiction to
which banks in such jurisdiction are subject for any category of deposits or
liabilities customarily used to fund loans. Such reserve percentages shall
include those imposed pursuant to such Regulation D. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Subsidiary" means, with respect to any Person, (i) any corporation
of which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person; (ii) any partnership of which more than 50%
of the outstanding partnership interests having the power to act as a general
partner of such partnership (irrespective of whether at the time any partnership
interests other than general partnership interests of such partnership shall or
might have voting power upon the occurrence of any contingency) are at the time
directly or indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person; or (iii) any other legal entity the accounts of which would or should be
consolidated with those of such Person on a consolidated balance sheet of such
Person prepared in accordance with GAAP. Unless otherwise indicated, when used
in this Agreement, the term "Subsidiary" shall refer to a Subsidiary of the
Borrowers.
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"Subsidiary Loan Party" means each of the Borrowers' Domestic
Subsidiaries that guarantee the Obligations pursuant to the applicable Guarantee
Agreement, as identified on Schedule 3.10 of the Original Credit Agreement.
"Super Holdco" has the meaning assigned to such term in the
definition of "Change in Control."
"Survey" means a survey of any Mortgaged Property (and all
improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state where such Mortgaged Property is located, (ii)
dated (or redated) not earlier than six months prior to the date of delivery
thereof unless there shall have occurred within six months prior to such date of
delivery any exterior construction on the site of such Mortgaged Property, in
which event such survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of such
date of delivery, not earlier than 20 days prior to such date of delivery, (iii)
certified by the surveyor (in a manner reasonably acceptable to the Collateral
Agent) to the Collateral Agent and the Title Company, (iv) complying in all
respects with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of preparation of
such survey and (v) sufficient for the Title Company to remove all standard
survey exceptions from the Title Policy and issue a survey endorsement.
"Swingline Commitment" means the commitment of the Swingline Lender
to make Loans pursuant to Section 2.04.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Revolving Lender at any time shall be its Commitment Percentage of the
total Swingline Exposure at such time.
"Swingline Lender" means Citicorp North America, Inc., in its
capacity as lender of Swingline Loans.
"Swingline Loan" has the meaning assigned to such term in Section
2.04(a).
"Swingline Sublimit" has the meaning assigned to such term as
Section 2.04(a).
"Taking" means any taking of any Property of any member of the
Restricted Group or any portion thereof, in or by condemnation or other eminent
domain proceedings pursuant to any law, general or special, or by reason of the
temporary requisition or use of any Property of the Parent Guarantor or any
Subsidiary or any portion thereof, by any Governmental Authority.
"Taxes" has the meaning assigned to such term in Section 2.16.
"Term A Borrowing" means a Borrowing comprised of Term A Loans on
the Effective Date.
"Term A Installment Date" has the meaning ascribed to such term in
Section 2.05(d)(i).
"Term A Lender" means a Lender with an outstanding Term A Loan, in
its capacity as such.
"Term A Loan Maturity Date" means April 14, 2010.
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"Term A Loans" means the Loans made on the Effective Date pursuant
to clause (i) of Section 2.01(a) of the Original Credit Agreement.
"Term B Loans" means the loans made on the Effective Date pursuant
to clause (ii) of Section 2.01(a) of the Original Credit Agreement.
"Term B Installment Date" means each date on which Term B Loans were
required to be repaid pursuant to the Original Credit Agreement.
"Term C Borrowing" means a Borrowing comprised of Term C Loans on
the Restatement Effective Date.
"Term C Borrowing Request" means a Borrowing Request in connection
with a Term C Borrowing on the Restatement Effective Date.
"Term C Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term C Loan pursuant to clause (i)
of Section 2.01(a) (or convert its Term B Loans pursuant to Section 1.04(b)) on
the Restatement Effective Date, expressed as an amount representing the maximum
principal amount of the Term C Loan to be made or converted by such Lender
hereunder, as the same may be reduced from time to time pursuant to the
provisions of this Agreement. The initial amount of the Term C Commitment of any
Term B Lender which has consented to the amendment and restatement of the
Original Credit Agreement to occur on the Restatement Effective Date shall be
equal to the principal amount of Term B Loans held by such Term B Lender on the
Restatement Effective Date (unless such Term B Lender has committed, pursuant to
a Lender Addendum, to provide a greater Term C Commitment, in which case such
Term B Lender's Term C Commitment shall include any incremental amount set forth
in such Lender Addendum) and the initial amount of each other Person with a Term
C Commitment shall be the amount set forth in such Person's Lender Addendum. The
initial aggregate amount of the Lenders' Term C Commitments is $313.95 million.
"Term C Commitment Percentage" means, with respect to any Lender,
such Lender's Term C Commitment expressed as a percentage of the Term C
Commitments of all Lenders.
"Term C Installment Date" has the meaning ascribed to such in
Section 2.05(d)(ii).
"Term C Lender" means a Lender with a Term C Commitment or an
outstanding Term C Loan, in its capacity as such.
"Term C Loan Maturity Date" means October 14, 2011.
"Term C Loans" means the Loans made pursuant to clause (i) of
Section 2.01(a).
"Term C Sublimit" means, with respect to the CCI Borrower, $119.6
million and, with respect to the TXU Borrower, $194.35 million.
"Terminated Lender" has the meaning assigned thereto in Section
2.20.
"Test Period" means the four consecutive complete Fiscal Quarters of
the Restricted Group then last ended as of each date listed under Test Period in
Sections 6.11, 6.12, 6.14 and 6.15 or otherwise indicated. Compliance with such
covenants shall be tested, as of the end of each Test Period, on the date on
which the financial statements pursuant to Section 5.01(a) or (b) have been, or
should have been, delivered for the applicable fiscal period.
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"Title Company" means Chicago Title or such other title insurance or
abstract company as shall be approved by the Collateral Agent.
"Title Policy" has the meaning assigned to such term in Section
5.19(a)(iii).
"Total Net Debt" means, at any date, Consolidated Indebtedness as of
such date, net of the lesser of (i) the amount of cash and cash equivalents in
excess of $5.0 million reflected on a combined consolidated balance sheet of CCI
Illinois Holdings and CCI Texas Holdings as of such date other than any such
amount that would be classified, in accordance with GAAP, as "restricted cash"
(and excluding the cash and cash equivalents of any Subsidiary that is not a
Loan Party to the extent such Subsidiary would be prohibited on such date from
distributing such cash to a Loan Party) and (ii) $25.0 million.
"Total Net Leverage Ratio" means, at any date, the ratio of (a)
Total Net Debt as of such date to (b) Consolidated EBITDA for the Test Period
most recently ended.
"Total Revolving Credit Commitment" means, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such time.
"TPUC" means the Texas Public Utilities Commission and any successor
organization performing similar regulatory functions.
"Transactions" means the Financing Transactions and the Acquisition.
"Trigger Date" means the date on which a Compliance Certificate for
the first quarter ending more than six months after the Effective Date shall
have been received by the Administrative Agent pursuant to Section 5.01(b).
"TXU Borrower" has the meaning ascribed to such term in the preamble
to this Agreement.
"TXUCV" means TXU Communications Ventures Company, a Texas
corporation.
"Type," when used in respect of any Loan or Borrowing, refers to the
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall include the Adjusted
LIBO Rate and the Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable state or jurisdiction.
"Unrefunded Swingline Loans" has the meaning assigned thereto in
Section 2.04(c).
"Weighted Average Life to Maturity" shall mean, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the
original aggregate principal amount of such Indebtedness into (b) the sum of the
total of the products obtained by multiplying (i) the amount of each scheduled
installment, sinking fund, serial maturity or other required payment of
principal including payment at final maturity, in respect thereof, by (ii) the
number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Welfare Plan" means a "welfare plan," as such term is defined in
Section 3(1) of ERISA, that is maintained or contributed to by a Loan Party or
any Subsidiary or with respect to which a Loan Party or any Subsidiary could
incur liability.
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"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Credit Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Credit Borrowing").
SECTION 1.03. Terms Generally. (a) The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation."
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (i) any reference in this Agreement to any Loan
Document means such document as amended, restated, supplemented or otherwise
modified from time to time and (ii) all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided that for purposes of determining compliance with the covenants
contained in Article VI, all accounting terms herein shall be interpreted and
all accounting determinations hereunder shall be made in accordance with GAAP as
in effect on the Effective Date and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.06.
(b) If any payment under this Agreement or any other Loan Document
shall be due on any day that is not a Business Day, the date for payment shall
be extended to the next succeeding Business Day, and in the case of any payment
accruing interest, interest thereon shall be paid for the period of such
extension.
SECTION 1.04. Effectiveness of Amendment and Restatement of Original
Credit Agreement; Term B Loan Prepayment and Conversion, Etc. (a) The amendment
and restatement of the Original Credit Agreement contemplated hereby shall
become effective on the Restatement Effective Date, and thereafter shall be
binding upon and inure to the benefit of the parties hereto and the parties to
the Original Credit Agreement and their respective successors and assigns. Prior
to the Restatement Effective Date, the Original Credit Agreement shall remain in
full force and effect and shall not be affected hereby. From and after the
Restatement Effective Date, all Obligations of Homebase, Illinois Holdings,
Texas Holdings and the Borrowers under the Original Credit Agreement shall
become Obligations of such Persons hereunder, continuously secured by the Liens
granted under the Security Documents, and the provisions of the Original Credit
Agreement shall be superseded by the provisions of hereof. Unless omitted or
modified in connection with the amendment and restatement of the Original Credit
Agreement on the Restatement Effective Date, all schedules and exhibits, as
amended prior to the Restatement Effective Date, shall not be amended or omitted
and shall remain as annexed of the Original Credit Agreement.
(b) Each Term B Lender (as defined under the Original Credit
Agreement) (an "Existing Term B Lender") that executes and delivers a signed
consent to the amendment and restatement of the Original Credit Agreement
contemplated hereby will be deemed to have agreed to have committed pursuant to,
and subject to the terms and conditions of, this Agreement to convert its Term B
Loans (with respect to each Term B Lender, such Lender's "Existing Term B
Loans") into Term C Loans on the Restatement Effective Date in a like principal
amount. By executing a consent to the amendment and restatement of the Original
Credit Agreement to occur on the Restatement Effective Date, each Existing
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Term B Lender agrees to all other provisions of this amendment and restatement
and to the conversion of its Existing Term B Loan to each Borrower into a Term C
Loan to such Borrower.
(b) Any Person that has agreed, pursuant to a Lender Addendum, to
provide a Term C Commitment in a principal amount in excess of the principal
amount of the Existing Term B Loans that it holds and is converting into Term C
Loans under Section 1.04(b) will be required to fund in Dollars in immediately
available funds on the Restatement Effective Date such amount for the purpose of
funding, in part the repayment of any remaining Existing Term B Loans after
giving effect to the conversion contemplated by Section 1.04(b). By executing a
Lender Addendum, each Person providing a Term C Commitment shall be deemed to
have become a Term C Lender party hereto for all purposes hereof.
(c) On the Restatement Effective Date, each Borrower shall use the
proceeds of the Term C Commitments provided under Section 1.04(c), together with
cash on hand, to optionally prepay any Existing Term B Loans which are not
converted into Term C Loans as contemplated by Section 1.04(b).
(d) All accrued and unpaid interest on the Existing Term B Loans to
be converted as contemplated by Section 1.04(b) or repaid with the proceeds of
Term C Loans as contemplated by Section 1.04(c) shall be paid to the Existing
Term B Lenders holding such Existing Term B Loans on and through the Restatement
Effective Date. Notwithstanding anything to the contrary contained herein, the
conversion of Existing Term B Loans into Term C Facility Loans shall not be
deemed to be a prepayment or conversion of Loans for purposes of Section 2.17 or
Section 2.03.
ARTICLE II
THE CREDITS
SECTION 2.01. Credit Commitments. (a) Subject to the terms and
conditions hereof, (i) each Term C Lender severally agrees to make (in the
manner specified in Section 1.04) a Term C Loan in Dollars to each Borrower on
the Restatement Effective Date in a principal amount not to exceed each such
Lender's Term C Commitment Percentage of each Borrower's Term C Sublimit; and
(ii) each Revolving Lender severally agrees to make Revolving Loans in Dollars
to either Borrower from time to time during the Revolving Credit Commitment
Period. Amounts repaid or prepaid in respect of Term C Loans may not be
reborrowed. During the Revolving Credit Commitment Period either Borrower may
use the Revolving Credit Commitments by borrowing, prepaying the Revolving Loans
in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. Notwithstanding anything to the contrary contained in this
Agreement, in no event may Revolving Loans be borrowed under this Article II if,
after giving effect thereto (and to any concurrent repayment or prepayment of
Loans), (i) the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment then in effect or (ii) the Revolving Credit Exposure
of any Revolving Lender would exceed such Revolving Lender's Revolving Credit
Commitment.
(b) The Revolving Loans and the Term C Loans may from time to time
be (i) Eurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.02 and 2.03.
(c) Each Loan (other than a Swingline Loan) shall be made as part of
a Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their respective Commitments of the applicable Class.
The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
Commit-
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ments of the Lenders are several and no Lender shall be responsible for any
other Lender's failure to make Loans as required.
(d) Notwithstanding anything in this Agreement to the contrary, the
Loans of each Class to each Borrower shall be held at all times in identical
ratios by each Lender of the applicable Class. The Borrowers and each Lender
hereby agree that notwithstanding any other provision of this Agreement
(including without limitation, Section 2.05(e)), if the application of any
provision of this Agreement would otherwise result in the ratio of outstanding
Loans to a Borrower of any Class to the total outstanding amount of Loans to
both Borrowers of such Class (any such ratio, a "Loan Ratio") being higher or
lower for any Lender of the applicable Class than the corresponding Loan Ratio
for each other Lender of such Class, the Loans of such Class shall, without any
action or consent by any Lender or any Borrower, be automatically reallocated
among the Lenders of such Class at the time as the event which would have caused
the Loan Ratios of any Lenders of the same Class to be different, such that,
after giving effect to such reallocation, each Lender of such Class shall have
identical Loan Ratios for the applicable Class of Loans. For the avoidance of
doubt, no reallocation pursuant to this Section 2.01(d) shall be construed as a
payment or borrowing with respect to any Loans subject to such reallocation.
Absent manifest error, the determination of the Administrative Agent with
respect to any such reallocation shall be binding on each Loan Party and each
Lender. The following is a non-exclusive example of the intended application of
the foregoing provision:
(i) Immediately prior to the CCI Borrower being required to prepay
$15.0 million aggregate principal amount of principal of its Term A Loans
and Term C Loans with Net Proceeds from an Asset Sale, the aggregate
principal amount of Term A Loans outstanding is $75.0 million. At the same
time, there is $150.0 million aggregate principal amount of Term C Loans
outstanding, consisting of $100 million of Term C Loans to the TXU
Borrower and $50 million of Term C Loans to the CCI Borrower. The Class of
Term C Lenders consists of two Lenders each of which holds $75.0 million
aggregate principal amount of Term C Loans, consisting of $50 million of
Term C Loans to the TXU Borrower and $25.0 million of Term C Loans to the
CCI Borrower.
(ii) In accordance with Section 2.05(e), one of the Term C Lenders
(the "Declining Term C Lender") declines to accept the $5.0 million
prepayment amount from such $15.0 million prepayment that would have
otherwise been applied to reduce remaining installments of principal on
its Term C Loans to the CCI Borrower while the other Term C Lender (the
"Accepting Term C Lender") elects to have the $5.0 million prepayment
applied to reduce remaining installments of principal on its Term C Loans
to the CCI Borrower.
(iii) Absent the application of this Section 2.01(d), following such
prepayment, the Declining Term C Lender would hold $50.0 million of Term C
Loans to the TXU Borrower and $25.0 million of Term C Loans to the CCI
Borrower and the Accepting Term C Lender would hold $50.0 million of Term
C Loans to the TXU Borrower and $20.0 million of Term C Loans to the CCI
Borrower.
(iv) However, as a result of the application of this Section
2.01(d), the Loan Ratios of the Declining Term C Lender and the Accepting
Term C Lender will be equal, with the Declining Term C Lender holding
approximately $51,724,137.93 of Term C Loans of the TXU Borrower and
$23,275,862.07 of Term C Loans of the CCI Borrower and the Accepting Term
C Lender holding approximately $48,275,862.07 of Term C Loans of the TXU
Borrower and $21,724,137.93 of Term C Loans of the CCI Borrower.
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SECTION 2.02. Procedure for Borrowing. (a) Either Borrower may
borrow under the Revolving Credit Commitments or the Term C Commitments
(subject, in each case, to the limitations in Section 2.01(a)) by giving the
Administrative Agent notice substantially in the form of Exhibit B to the
Original Credit Agreement (a "Borrowing Request") (provided, that Exhibit B to
the Original Credit Agreement is hereby amended by deleting each reference to
"Term B Loan" and replacing it with "Term C Loan" and by deleting each reference
to "Term B Borrowing" and replacing it with "Term C Borrowing"), which notice
must be received by the Administrative Agent prior to (a) 11:00 a.m., New York
City time, three Business Days prior to the requested Borrowing Date, in the
case of a Eurodollar Borrowing, or (b) 11:00 a.m., New York City time, on the
Business Day prior to the requested Borrowing Date, in the case of an ABR
Borrowing. The Borrowing Request for each Borrowing shall specify (i) whether
the requested Borrowing is to be a Revolving Credit Borrowing, or a Term C
Borrowing, (ii) the amount to be borrowed, (iii) the requested Borrowing Date
(which must be the Restatement Effective Date in the case of a Term C
Borrowing), (iv) whether the Borrowing is to be of Eurodollar Loans or ABR
Loans, (v) if the Borrowing is to be of Eurodollar Loans, the length of the
initial Interest Period therefor, and (vi) the location and number of such
Borrower's account to which funds are to be disbursed, which shall comply with
the requirements of this Agreement; provided that the Term C Loans (whether
converted pursuant to Section 1.04(b) or funded as contemplated by Section
1.04(c)) shall have Interest Periods equal to the Interest Periods in effect
with respect to the Term B Loans immediately prior to the Restatement Effective
Date except that interest on such Term C Loans shall accrue from the Restatement
Effective Date until the end of such Interest Periods. If no election as to the
Type of Borrowing is specified, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower making such Borrowing Request shall be
deemed to have selected an Interest Period of one month's duration.
(b) Each Borrowing shall be in a minimum aggregate principal amount
of (i) in the case of a Term C Borrowing, $5.0 million or an integral multiple
of $1.0 million in excess thereof (or, if not an integral multiple of $1.0
million, such Borrower's full Term C Sublimit) or (ii) in the case of a
Revolving Credit Borrowing, $1.0 million or an integral multiple of $500,000 in
excess thereof (or, if less, the aggregate amount of the then Available
Revolving Credit Commitments).
(c) [Intentionally Omitted].
(d) Upon receipt of a Term C Borrowing Request, the Administrative
Agent shall promptly notify each Term C Lender which is required to fund its
Term C Loans as contemplated by Section 1.04(c) of the aggregate amount of the
Term C Borrowing and of the amount of such Term C Lender's pro rata portion
thereof, which shall be based on such Lender's Term C Commitment Percentage.
Each such Term C Lender will make its Term C Commitment Percentage of the Term C
Borrowing available to the Administrative Agent for the account of the
applicable Borrower at the New York office of the Administrative Agent specified
in Section 9.01 prior to 10:00 a.m., New York City time, on the Restatement
Effective Date in funds immediately available to the Administrative Agent. Each
Borrower hereby authorizes and directs the Administrative Agent to apply any
amounts so received by the Administrative Agent from the borrowing of the Term C
Loans to the prepayment of such Borrower's Term B Loans in accordance with
Section 2.05(a) of the Original Credit Agreement.
(e) Upon receipt of a Revolving Credit Borrowing Request, the
Administrative Agent shall promptly notify each Revolving Lender of the
aggregate amount of such Revolving Credit Borrowing and of the amount of such
Revolving Lender's pro rata portion thereof, which shall be based on the
respective Available Revolving Credit Commitments of all the Revolving Lenders.
Each Revolving Lender will make the amount of its pro rata portion of each such
Revolving Credit Borrowing available to the Administrative Agent for the account
of the applicable Borrower at the New York office of the Administrative Agent
specified in Section 9.01 prior to 12:00 p.m., New York City time, on the
Borrow-
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ing Date requested by the applicable Borrower in funds immediately available to
the Administrative Agent. Amounts so received by the Administrative Agent will
promptly be made available to the applicable Borrower by the Administrative
Agent crediting the account of the applicable Borrower on the books of such
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; provided that if on the Borrowing Date of any Revolving
Loans to be made to either Borrower, any Swingline Loans made to such Borrower
or LC Disbursements for the account of such Borrower shall be then outstanding,
the proceeds of such Revolving Loans shall first be applied to pay in full such
Swingline Loans or LC Disbursements, with any remaining proceeds to be made
available to the applicable Borrower as provided above; and provided further
that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.06(e) shall be remitted by the Administrative Agent to
the Issuing Bank.
SECTION 2.03. Conversion and Continuation Options for Loans. (a)
Either Borrower may elect from time to time to convert its (i) Eurodollar Loans
to ABR Loans, by giving the Administrative Agent prior notice of such election
not later than 11:00 a.m., New York City time, on the Business Day prior to a
requested conversion or (ii) ABR Loans to Eurodollar Loans by giving the
Administrative Agent prior notice of such election not later than 11:00 a.m.,
New York City time, three Business Days prior to a requested conversion;
provided that if any such conversion of Eurodollar Loans is made other than on
the last day of an Interest Period with respect thereto, such Borrower shall pay
any amounts due to the Lenders pursuant to Section 2.17 as a result of such
conversion. Any such notice of conversion to Eurodollar Loans shall specify the
length of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly notify each Lender
thereof. All or any part of the outstanding Eurodollar Loans or ABR Loans may be
converted as provided herein; provided that (i) no Loan may be converted into a
Eurodollar Loan when any Default has occurred and is continuing, and (ii) no
Loan may be converted into a Eurodollar Loan after the date that is one month
prior to the Revolving Credit Maturity Date, the Term A Loan Maturity Date or
the Term C Loan Maturity Date, as applicable.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
applicable Borrower giving prior notice to the Administrative Agent, not later
than 11:00 a.m., New York City time, three Business Days prior to a requested
continuation setting forth the length of the next Interest Period to be
applicable to such Loans; provided that no Eurodollar Loan may be continued as
such (i) when any Default has occurred and is continuing, and (ii) after the
date that is one month prior to the Revolving Credit Maturity Date, the Term A
Loan Maturity Date or the Term C Loan Maturity Date, as applicable; and
provided, further, that if the applicable Borrower shall fail to give any
required notice as described above in this Section 2.03 or if such continuation
is not permitted pursuant to the preceding proviso, then such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period (in which case the Administrative Agent shall notify the
applicable Borrower of such conversion).
(c) There shall be no more than five (5) Interest Periods
outstanding at any time with respect to the Eurodollar Loans made to a Borrower.
(d) This Section shall not apply to Swingline Loans.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and
conditions hereof, the Swingline Lender agrees to make swingline loans
(individually, a "Swingline Loan" and collectively, the "Swingline Loans") to
either Borrower from time to time during the Revolving Credit Commitment Period
in accordance with the procedures set forth in this Section 2.04, provided that
(i) the aggregate principal amount of all Swingline Loans shall not exceed $5.0
million (the "Swingline Sublimit") at any one time outstanding, (ii) the
principal amount of any borrowing of Swingline Loans may not exceed the
ag-
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gregate amount of the Available Revolving Credit Commitments of all Revolving
Lenders immediately prior to such borrowing or result in the Aggregate Revolving
Credit Exposure then outstanding exceeding the Total Revolving Credit
Commitments then in effect, and (iii) in no event may Swingline Loans be
borrowed hereunder if a Default shall have occurred and be continuing which
shall not have been subsequently cured or waived. Amounts borrowed under this
Section 2.04 may be repaid and, up to but excluding the Revolving Credit
Maturity Date, reborrowed. All Swingline Loans shall at all times be ABR Loans.
A Borrower requesting a Swingline Loan shall give the Administrative Agent
notice of any Swingline Loan requested hereunder (which notice must be received
by the Administrative Agent prior to 11:00 a.m., New York City time, on the
requested Borrowing Date) specifying (A) the amount to be borrowed, and (B) the
requested Borrowing Date. Upon receipt of such notice, the Administrative Agent
shall promptly notify the Swingline Lender of the aggregate amount of such
borrowing. Not later than 2:00 p.m., New York City time, on the Borrowing Date
specified in such notice the Swingline Lender shall make such Swingline Loan
available to the Administrative Agent for the account of the applicable Borrower
at the office of the Administrative Agent set forth in Section 9.01 in funds
immediately available to the Administrative Agent. Amounts so received by the
Administrative Agent will promptly be made available to the applicable Borrower
by the Administrative Agent crediting the account of the applicable Borrower on
the books of such office with the amount made available to the Administrative
Agent by the Swingline Lender (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.06(e),
by remittance to the Issuing Bank) and in like funds as received by the
Administrative Agent. Each Borrowing pursuant to this Section 2.04 shall be in a
minimum principal amount of $500,000 or an integral multiple of $100,000 in
excess thereof.
(b) Notwithstanding the occurrence of any Default or noncompliance
with the conditions precedent set forth in Article IV or the minimum borrowing
amounts specified in Section 2.02, if any Swingline Loan shall remain
outstanding at 10:00 a.m., New York City time, on the seventh Business Day
following the Borrowing Date thereof and if by such time on such seventh
Business Day the Administrative Agent shall have received neither (i) a notice
of borrowing delivered by the Borrower which has borrowed such Swingline Loan
pursuant to Section 2.02 requesting that Revolving Loans be made pursuant to
Section 2.01 on the immediately succeeding Business Day in an amount at least
equal to the aggregate principal amount of such Swingline Loan, nor (ii) any
other notice satisfactory to the Administrative Agent indicating such Borrower's
intent to repay such Swingline Loan on the immediately succeeding Business Day
with funds obtained from other sources, the Administrative Agent shall be deemed
to have received a notice from such Borrower pursuant to Section 2.02 requesting
that ABR Revolving Loans be made pursuant to Section 2.01 on such immediately
succeeding Business Day in an amount equal to the amount of such Swingline Loan,
and the procedures set forth in Section 2.02 shall be followed in making such
ABR Revolving Loans; provided that for the purposes of determining each
Revolving Lender's Pro Rata Percentage with respect to such Borrowing, the
Swingline Loan to be repaid with the proceeds of such Borrowing shall be deemed
to not be outstanding. The proceeds of such ABR Revolving Loans shall be applied
to repay such Swingline Loan.
(c) If, for any reason, ABR Revolving Loans may not be, or are not,
made pursuant to paragraph (b) of this Section 2.04 to repay any Swingline Loan
as required by such paragraph, effective on the date such ABR Revolving Loans
would otherwise have been made, each Revolving Lender severally, unconditionally
and irrevocably agrees that it shall, without regard to the occurrence of any
Default, purchase a participating interest in such Swingline Loan ("Unrefunded
Swingline Loan") in an amount equal to the amount of the ABR Revolving Loan
which would otherwise have been made pursuant to paragraph (b) of this Section
2.04. Each Revolving Lender will immediately transfer to the Administrative
Agent, in immediately available funds, the amount of its participation, and the
proceeds of such participations shall be distributed by the Administrative Agent
to the Swingline Lender. All payments by the Revolving Lenders in respect of
Unrefunded Swingline Loans and participations therein shall be made in
accordance with Section 2.13.
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(d) Notwithstanding the foregoing, a Revolving Lender shall not have
any obligation to acquire a participation in a Swingline Loan pursuant to the
foregoing paragraphs if a Default shall have occurred and be continuing at the
time such Swingline Loan was made and such Revolving Lender shall have notified
the Swingline Lender in writing prior to the time such Swingline Loan was made,
that such Default has occurred and that such Revolving Lender will not acquire
participations in Swingline Loans made while such Default is continuing.
SECTION 2.05. Optional and Mandatory Prepayments of Loans;
Repayments of Term A Loans and Term C Loans. (a) Either Borrower may at any time
and from time to time prepay the Loans made to it (subject to compliance with
the terms of Section 2.16), in whole or in part, subject to Section 2.05(e),
upon irrevocable notice to the Administrative Agent not later than 12:00 noon,
New York City time, two Business Days prior to the date of such prepayment
(provided, that no notice shall be required in connection with the repayment of
the Term B Loans with the proceeds of Term C Loans and the conversion of Term B
Loans into Term C Loans), specifying (i) the date and amount of prepayment, and
(ii) the Class of Loans to be prepaid and whether the prepayment is of
Eurodollar Loans, ABR Loans or a combination thereof (including in the case of
Eurodollar Loans, the Borrowing to which such prepayment is to be applied and,
if of a combination thereof, the amount allocable to each; provided that in
connection with any prepayment of Term C Loans prior to the one year anniversary
of the Restatement Effective Date out of the proceeds of a substantially
concurrent issuance or incurrence of term loans under this Agreement (excluding
a refinancing of all the Loans in connection with another transaction not
permitted by this Agreement (as determined prior to giving effect to any
amendment or waiver of this Agreement in connection with such transaction)),
shall be accompanied by a prepayment fee equal to 1.0% of the aggregate amount
of such prepayment if any of the interest rates payable in respect of such term
loans is less than the corresponding interest rate that would have been payable
in respect of the Term CLoans. 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 accrued interest to such
date on the amount prepaid. Partial prepayments of Loans (other than Swingline
Loans) shall be in a minimum principal amount of $3.0 million or a whole
multiple of $1.0 million in excess thereof (or, if less, the remaining
outstanding principal amount thereof). Partial prepayments of Swingline Loans
shall be in a minimum principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof (or, if less, the remaining outstanding principal
amount thereof).
(b) In the event and on such occasion that the Aggregate Revolving
Credit Exposure exceeds the Total Revolving Credit Commitment, each Borrower
shall, to the extent such Borrower has Revolving Credit Borrowings or Swingline
Borrowings outstanding at such time, be obligated to immediately prepay its
Revolving Credit Borrowings or Swingline Borrowings (or, if no such Borrowings
are outstanding, deposit cash collateral in the account established with the
Administrative Agent pursuant to Section 2.06(j)) to the extent of such excess.
(c) (i) If Homebase or any direct or indirect common parent company
of CCI Texas Holdings and CCI Illinois Holdings shall issue any Equity Interests
or Equity Rights (it being understood that the issuance of debt securities
convertible into, or exchangeable or exercisable for, any Equity Interest or
Equity Right shall be governed by Section 2.05(c)(ii) below) (other than any
Excluded Equity Issuance) (each, an "Equity Issuance"), 50% of the Net Proceeds
thereof shall be applied immediately after receipt thereof toward the prepayment
of Loans in accordance with Section 2.05(e) below.
(ii) If any member of the Restricted Group shall incur or permit the
incurrence of any Indebtedness (including pursuant to debt securities which are
convertible into, or exchangeable or exercisable for, any Equity Interest or
Equity Rights) (other than Excluded Debt Issuances) (each, a "Debt Incurrence"),
100% of the Net Proceeds thereof shall be applied immediately after receipt
thereof toward the prepayment of Loans in accordance with Section 2.05(e) below.
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(iii) If any member of the Restricted Group shall receive Net
Proceeds from any Asset Sale, 100% of such Net Proceeds shall be applied
immediately after receipt thereof toward the prepayment of Loans in accordance
with Section 2.05(e) below; provided that (x) the Net Proceeds from Asset Sales
permitted by Section 6.05 shall not be required to be applied as provided herein
on such date if and to the extent that (1) no Default exists on the date of such
Asset Sale or would arise as a result of such Asset Sale and (2) the TXU
Borrower (in the case of any Asset Sale by any member of the CCI Texas Borrower
Group) or the CCI Borrower (in the case of any Asset Sale by any member of the
CCI Illinois Borrower Group) delivers an officers' certificate to the
Administrative Agent on or prior to the date of such Asset Sale stating that
such Net Proceeds shall be reinvested in capital assets of such Borrower or any
of its Subsidiaries in each case within 270 days following the date of such
Asset Sale (which certificate shall set forth the estimates of the proceeds to
be so expended), (y) all such Net Proceeds shall be held in the Collateral
Account and released therefrom only in accordance with the terms of the Security
Agreement, and (z) if all or any portion of such Net Proceeds not so applied as
provided herein is not allocated to reinvestment in respect of a project that
shall have been commenced, and for which binding contractual commitments have
been entered into, prior to the end of such 270-day period, such remaining
portion shall be applied on the last day of such period (or if any Net Proceeds
allocated to such an investment on such 270th day shall cease to be so allocated
or any such contractual commitment shall cease to be in effect and contractually
committed, such remaining portion shall be applied on the date it ceases to be
so allocated and contractually committed) as specified in this subsection
(c)(iii); provided, further, if the Property subject to such Asset Sale
constituted Collateral under the Security Documents, then any capital assets
purchased with the Net Proceeds thereof pursuant to this subsection shall be
mortgaged or pledged, as the case may be, to the Collateral Agent, for its
benefit and for the benefit of the other Secured Parties in accordance with
Section 5.11.
(iv) If any member of the Restricted Group shall receive proceeds
from insurance or condemnation recoveries in respect of any Destruction or any
proceeds or awards in respect of any Taking, 100% of the Net Proceeds thereof
shall be applied immediately after receipt thereof toward the prepayment of
Loans in accordance with Section 2.05(e) below; provided that, if such Net
Proceeds are from a Taking or Destruction of Property of ICTC, such prepayments
may be deferred until such time as ICTC would be permitted at such time to make
a distribution of such amount; provided, further, that (x) so long as no Default
then exists or would arise therefrom, such Net Proceeds shall not be required to
be so applied to the extent that the TXU Borrower (in the case of any
Destruction or Taking relating to any member of the CCI Texas Borrower Group) or
the CCI Borrower (in the case of any Destruction or Taking relating to any
member of the CCI Illinois Borrower Group) has delivered an officers'
certificate to the Administrative Agent promptly following the receipt of such
Net Proceeds stating that such proceeds shall be used to (1) repair, replace or
restore any Property in respect of which such Net Proceeds were paid or (2) fund
the substitution of other Property used or usable in the business of such
Borrower or its Subsidiaries, in each case within 270 days following the date of
the receipt of such Net Proceeds, (y) all such Net Proceeds shall be held in the
Collateral Account and released therefrom only in accordance with the terms of
the Security Agreement, and (z) if all or any portion of such Net Proceeds has
not been allocated to reinvestment in respect of a project that shall have been
commenced, and for which binding contractual commitments have been entered into,
prior to the end of such 270-day period, such remaining portion shall be applied
on the last day of such period (or if any Net Proceeds allocated and
contractually committed to such an investment on such 270th day shall cease to
be so allocated and contractually committed, such remaining portion shall be
applied on the date it ceases to be so allocated and contractually committed),
such remaining portion shall be applied on the last day of such period to prepay
Loans pursuant to Section 2.05(e); provided, further, if the Property subject to
such Destruction or Taking constituted Collateral under the Security Documents,
then any replacement or substitution Property purchased with the Net Proceeds
thereof pursuant to this subsection shall be mortgaged or pledged, as the case
may be, to the Collateral Agent, for its benefit and for the benefit of the
other Secured Parties in accordance with Section 5.11.
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(v) If there shall be Excess Cash Flow for any Excess Cash Flow
Period, 50% of such Excess Cash Flow shall be applied, not later than the 90th
day after the end of such Excess Cash Flow Period, toward prepayment of Loans in
accordance with Section 2.05(e) below.
The applicable Borrower shall give the Administrative Agent at least
five (5) Business Days' notice of any prepayment pursuant to this Section
2.05(c).
(d) Installment Payments.
(i) Each Borrower shall repay its Term A Loans in consecutive
quarterly installments on the dates set forth below (each such day, a "Term A
Installment Date"), commencing on December 31, 2004, in an aggregate amount for
such Borrower equal to the amount specified below for such Borrower on such Term
A Installment Date.
CCI Borrower TXU Borrower
------------ ------------
Term A Installment Date Installment Amount Installment Amount
----------------------- ------------------ ------------------
December 31, 2004 $1,366,120.08 $1,967,213.25
March 31, 2005 $1,366,120.08 $1,967,213.26
June 30, 2005 $1,536,885.25 $2,213,114.75
September 30, 2005 $1,536,885.25 $2,213,114.75
December 31, 2005 $1,536,885.25 $2,213,114.75
March 31, 2006 $1,536,885.25 $2,213,114.75
June 30, 2006 $2,049,180.33 $2,950,819.67
September 30, 2006 $2,049,180.33 $2,950,819.67
December 31, 2006 $2,049,180.33 $2,950,819.67
March 31, 2007 $2,049,180.33 $2,950,819.67
June 30, 2007 $2,049,180.33 $2,950,819.67
September 30, 2007 $2,049,180.33 $2,950,819.67
December 31, 2007 $2,049,180.33 $2,950,819.67
March 31, 2008 $2,049,180.33 $2,950,819.67
June 30, 2008 $2,561,475.41 $3,688,524.59
September 30, 2008 $2,561,475.41 $3,688,524.59
December 31, 2008 $2,561,475.41 $3,688,524.59
March 31, 2009 $2,561,475.41 $3,688,524.59
June 30, 2009 $3,278,688.52 $4,721,311.48
September 30, 2009 $3,278,688.52 $4,721,311.48
December 31, 2009 $3,278,688.52 $4,721,311.48
Term A Loan Maturity Date $3,278,688.52 $4,721,311.48
(ii) Each Borrower shall repay the Term C Loans in consecutive
quarterly installments on the dates set forth below (each such day, a "Term C
Installment Date"), commencing on December 31, 2004, in an aggregate amount for
each Borrower equal to the amount specified below for such Borrower on such Term
C Installment Date.
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CCI Borrower TXU Borrower
------------ ------------
Term C Installment Date Installment Amount Installment Amount
----------------------- ------------------ ------------------
December 31, 2004 $400,000 $650,000
March 31, 2005 $400,000 $650,000
June 30, 2005 $300,000 $487,500
September 30, 2005 $300,000 $487,500
December 31, 2005 $300,000 $487,500
March 31, 2006 $300,000 $487,500
June 30, 2006 $300,000 $487,500
September 30, 2006 $300,000 $487,500
December 31, 2006 $300,000 $487,500
March 31, 2007 $300,000 $487,500
June 30, 2007 $300,000 $487,500
September 30, 2007 $300,000 $487,500
December 31, 2007 $300,000 $487,500
March 31, 2008 $300,000 $487,500
June 30, 2008 $300,000 $487,500
September 30, 2008 $300,000 $487,500
December 31, 2008 $300,000 $487,500
March 31, 2009 $300,000 $487,500
June 30, 2009 $300,000 $487,500
September 30, 2009 $300,000 $487,500
December 31, 2009 $300,000 $487,500
March 31, 2010 $300,000 $487,500
June 30, 2010 $300,000 $487,500
September 30, 2010 $300,000 $487,500
December 31, 2010 $300,000 $487,500
March 31, 2011 $27,975,000 $45,459,375
June 30, 2011 $27,975,000 $45,459,375
September 30, 2011 $27,975,000 $45,459,375
Term C Loan Maturity Date $27,975,000 $45,459,375
(e) Subject to the proviso of this sentence, any prepayment of Loans
pursuant to clause (i) or (v) of Section 2.05(c) above shall be applied pro rata
to the Loans (in the order set below) of each Borrower in proportion to the
total principal amount of Loans of each Borrower of the applicable Class
outstanding at such time and all other prepayments pursuant to any other
provision of Section 2.05(c) shall be applied to repay (i) Loans of the CCI
Borrower to the extent the event requiring such prepayment related to the CCI
Illinois Borrower Group and (ii) Loans of the TXU Borrower to the extent the
event requiring such prepayment related to the CCI Texas Borrower Group;
provided that (x) if, any Lender holding Term C Loans elects, pursuant to the
third succeeding sentence of this Section 2.05(e), to decline a prepayment of
its Term C Loans, and the amount of prepayments so declined by Term C Lenders
exceeds the amount of Term A Loans of the Borrower making such prepayment, the
amount so declined by Term C Lenders shall be applied first, to prepay Term A
Loans of the Borrower making such prepayment, second, after prepayment in full
of the Term A Loans of the Borrower making such prepayment, to any other Term A
Loans then outstanding, and third, to prepayment of Term C Loans as provided in
the first proviso to the third succeeding sentence of this Section 2.05(e), (y)
subject to the foregoing clause (x), if either Borrower is required to make a
prepayment of Loans pursuant to Section 2.05(c), but such Borrower shall not at
the time of such required prepayment have sufficient Term A Loans or
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Term C Loans to fully utilize the amount required to be applied to such
prepayment, the Term A Loans and/or Term C Loans (as otherwise determined
pursuant to this Section 2.05(e)) of the other Borrower shall be prepaid with
such excess amount and (z) subject to the foregoing clauses (x) and (y), in lieu
of applying prepayments pursuant to clause (v) of Section 2.05(c) as provided
above, the Borrowers may elect to apply the amount required to be applied to
prepay Loans pursuant to such clause first to prepay Loans of the Borrower which
is a member of the Borrower Group with the higher Borrower Group Leverage Ratio
at such time until the Borrower Group Leverage Ratios of each Borrower Group
would be equal after giving effect to such prepayment and second to the Loans of
each Borrower in amounts such that after giving effect to such prepayments the
Borrower Group Leverage Ratios of the Borrower Groups would be equal.
Prepayments of Loans pursuant to Section 2.05(a) shall be applied pro rata to
remaining installments of principal of the Term A Loans and Term C Loans
(provided that to the extent the Borrower making such prepayment has sufficient
Loans of the applicable Class to utilize the pro rata portion of such prepayment
to be applied to such Class, the Loans of such Borrower shall be prepaid with
such amount) and within each such Class of Loans shall be applied, first, to all
ABR Loans of such Class then outstanding and second, to the Eurodollar Loans of
such Class then outstanding. Except as provided in the following sentence, any
prepayment pursuant to Section 2.05(c) shall be applied pro rata to remaining
installments of principal of the applicable Term A Loans and Term C Loans and
within each such Class of Loans shall be applied, first, to all ABR Loans of
such Class then outstanding and second, to the Eurodollar Loans of such Class
then outstanding. Notwithstanding the foregoing, any Term C Lender at its sole
discretion may, with respect to any prepayment pursuant to Section 2.05(c)
(except as provided below), so long as any Term A Loans are then outstanding,
elect by written notice provided to the Administrative Agent to not have any
amount of any such prepayment applied to such Lender's Term C Loans, in which
case the aggregate amount so declined shall be applied to the Term A Loans, pro
rata to the remaining scheduled installments of principal thereof; provided,
however, that to the extent that the aggregate amount of the Term A Loans
outstanding is less than the aggregate amount so declined by Term C Lenders,
such excess shall be allocated between the declining Term C Lenders pro rata
based on the aggregate amount declined by each such Lender.
(f) If on any day on which Loans would otherwise be required to be
prepaid pursuant to this Section 2.05, but for the operation of this Section
2.05(f) (each, a "Prepayment Date"), the amount of such required prepayment
exceeds the then outstanding aggregate principal amount of ABR Loans of the
applicable Borrower which are of the Type required to be prepaid, and no Default
exists or is continuing, then on such Prepayment Date, (i) the Borrowers shall
deposit funds into the Collateral Account in an amount equal to such excess, and
only the outstanding ABR Loans which are of the Type required to be prepaid
shall be required to be prepaid on such Prepayment Date, and (ii) on the last
day of each Interest Period after such Prepayment Date in effect with respect to
a Eurodollar Loan which is of the Type required to be prepaid, the
Administrative Agent is irrevocably authorized and directed by each Borrower to
apply funds from the Collateral Account (and liquidate investments held in the
Collateral Account as necessary) to prepay such Eurodollar Loans for which the
Interest Period is then ending to the extent funds are available in the
Collateral Account.
SECTION 2.06. Letters of Credit.
(a) General. Subject to the terms and conditions set forth herein,
either Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Revolving Credit
Commitment Period. In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any form of letter
of credit application or other agreement submitted by either Borrower to, or
entered into by either Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
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(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), a Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or extended,
and specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the Issuing Bank, the applicable Borrower also shall
submit a letter of credit application on the Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the applicable Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension, (i) the LC Exposure shall not exceed $10.0
million and (ii) the Aggregate Revolving Credit Exposure shall not exceed the
Total Revolving Credit Commitment. With respect to any Letter of Credit which
contains any "evergreen" automatic renewal provision, the Issuing Bank shall be
deemed to have consented to any such extension or renewal provided that all of
the requirements of this Section 2.06 are met and no Default exists.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Credit Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Revolving Lender's Commitment Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In consideration and in
furtherance of the foregoing, each Revolving Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Revolving Lender's Commitment Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrowers on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to either Borrower for any reason. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Revolving Credit Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit issued at the request of a
Borrower, such Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is made,
if such Borrower shall have received notice of such LC Disbursement prior to
10:00 a.m., New York City time, on such date, or, if such notice has not been
received by such Borrower prior to such time on such date, then not later than
12:00 noon, New York City time, on (i) the Business Day that such Borrower
receives such notice, if such notice is received prior to 10:00 a.m., New York
City time, on the day of receipt, or (ii) the Business Day immediately following
the day that such Borrower receives such notice, if such notice is not received
prior to such time on such date; provided that the applicable Borrower may,
subject to the
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conditions to borrowing set forth herein, request in accordance with Section
2.02 that such payment be financed with an ABR Revolving Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, such Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan. If such Borrower fails to
make such payment when due, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the payment then due from such
Borrower in respect thereof and such Revolving Lender's Commitment Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Commitment Percentage of the payment then
due from such Borrower, in the same manner as provided in Section 2.02 with
respect to Loans made by such Revolving Lender (and Section 2.02 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so
received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from such Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the Issuing
Bank or, to the extent that Revolving Lenders have made payments pursuant to
this paragraph to reimburse the Issuing Bank, then to such Revolving Lenders and
the Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline Loan
as contemplated above) shall not constitute a Loan and shall not relieve the
applicable Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. Each Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section 2.06 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, such Borrower's obligations hereunder.
Neither the Administrative Agent, the Revolving Lenders nor the Issuing Bank,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to in the preceding sentence), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the applicable Borrower
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by each Borrower to the extent permitted
by applicable law) suffered by such Borrower that are caused by the Issuing
Bank's failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof. The
parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a
court of competent jurisdiction), the Issuing Bank shall be deemed to have
exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
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(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the applicable Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the applicable Borrower
of its obligation to reimburse the Issuing Bank and the Revolving Lenders with
respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the applicable Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid amount
thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that such Borrower reimburses
such LC Disbursement, at the rate per annum then applicable to ABR Revolving
Loans; provided that if such Borrower fails to reimburse such LC Disbursement
when due pursuant to paragraph (e) of this Section 2.06, then Section 2.08(c)
shall apply. Interest accrued pursuant to this paragraph shall be for the
account of the Issuing Bank, except that interest accrued on and after the date
of payment by any Revolving Lender pursuant to paragraph (e) of this Section
2.06 to reimburse the Issuing Bank shall be for the account of such Lender to
the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrowers, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, each
Borrower shall pay all unpaid fees payable by it that have accrued for the
account of the replaced Issuing Bank pursuant to Section 2.10(b). From and after
the effective date of any such replacement, (i) the successor Issuing Bank shall
have all the rights and obligations of the Issuing Bank under this Agreement
with respect to Letters of Credit to be issued thereafter and (ii) references
herein to the term "Issuing Bank" shall be deemed to refer to such successor or
to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that either Borrower receives notice from the
Administrative Agent or the Requisite Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, such Borrower shall deposit in the Collateral
Account an amount in cash equal to the LC Exposure represented by Letters of
Credit issued at such Borrower's request as of such date plus any accrued and
unpaid fees thereon; provided that such Borrower's obligations to deposit such
cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to either Borrower
described in clause (a) of Section 7.01 or any Event of Default described in
clause (i) of Section 7.01. Each such deposit shall be held by the Collateral
Agent as collateral for the payment and performance of the Obligations of the
applicable Borrower under this Agreement and each Borrower hereby grants the
Collateral Agent a security interest in respect of each such deposit and the
Collateral Account in which such deposits are held. The Collateral Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over the Collateral Account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and
sole discretion of the Collateral Agent and at the Borrowers' risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in the Collateral Account. Moneys deposited in the
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Collateral Account pursuant to this Section 2.06(j) shall be applied by the
Collateral Agent to reimburse the Issuing Bank for LC Disbursements for which it
has not been reimbursed and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the depositing Borrower for the
LC Exposure represented by Letters of Credit issued at such Borrower's request
at such time or, if the maturity of the Loans has been accelerated (but subject
to the consent of Revolving Lenders with LC Exposure representing greater than
50% of the total LC Exposure), be applied to satisfy other obligations of such
Borrower under this Agreement and the other Loan Documents. If any Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the applicable Borrower within three Business
Days after all Defaults have been cured or waived.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of the relevant Lenders (i) in respect of Revolving Credit
Borrowings of such Borrower, on the Revolving Credit Maturity Date (or such
earlier date as, and to the extent that, such Revolving Loan becomes due and
payable pursuant to Section 2.05 or Article VII), the unpaid principal amount of
each Revolving Loan and each Swingline Loan made to it by each such Lender; (ii)
in respect of Term A Borrowings, on the Term A Loan Maturity Date (or such
earlier date as, and to the extent that, such Term A Loan becomes due and
payable pursuant to Section 2.05 or Article VII), the unpaid principal amount of
each Term A Loan made to it by each Term A Lender; and (iii) in respect of Term
C Borrowings, on the Term C Loan Maturity Date (or such earlier date as, and to
the extent that, such Term C Loan becomes due and payable pursuant to Section
2.05 or Article VII), the unpaid principal amount of each Term C Loan made to it
by each Term C Lender. Each Borrower hereby further agrees to pay interest in
immediately available funds at the applicable office of the Administrative Agent
(as specified in Section 2.13(a)) on the unpaid principal amount of the
Revolving Loans, Swingline Loans, Term A Loans and Term C Loans made to it from
time to time from the Effective Date (or, in the case of the Term C Loans, the
Restatement Effective Date) until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.08. All payments required
hereunder shall be made in Dollars.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the amounts of
principal and interest payable and paid to such lending office of such Lender on
behalf of each Borrower from time to time under this Agreement. Each Lender
acknowledges that the amount of Loans of any Class owed to such Lender at any
time by the respective Borrowers (but not the aggregate amount of Loans of such
Class owed to such Lender) is subject to adjustment as provided in Section
2.01(d).
(c) The Administrative Agent shall maintain the Register pursuant to
Section 9.04, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the amount of each such Loan,
the Class and Type of each such Loan, to which Borrower such Loan was made
(including by way of conversion pursuant to Section 1.04(b)) and the Interest
Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each Lender hereunder
in respect of each such Loan, (iii) the amount of any sum received by the
Administrative Agent hereunder from each Borrower in respect of each such Loan
and each Lender's share thereof (including by way of conversion pursuant to
Section 1.04(b)) and (iv) the amount of Loans of each Class of each Borrower
owed to each Lender (including after giving effect to any reallocation pursuant
to Section 2.01(d).
(d) The entries made in the Register and accounts maintained
pursuant to paragraphs (b) and (c) of this Section 2.07 and the Notes maintained
pursuant to paragraph (e) of this Section 2.07 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and
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amounts of the obligations of each Borrower therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
account, such Register or such subaccount, as applicable, or any error therein,
shall not in any manner affect the obligation of each Borrower to repay (with
applicable interest) the Loans made to such Borrower by such Lender in
accordance with the terms of this Agreement.
(e) The Loans of each Class made by each Lender to either Borrower
shall, if requested by the applicable Lender (which request shall be made to the
Administrative Agent), be evidenced by a single Note duly executed on behalf of
the Borrowers, in substantially the form attached to the Original Credit
Agreement (as amended hereby) as Exhibit ▇-▇, -▇ ▇▇ -▇, as applicable, with the
blanks appropriately filled, payable to the order of such Lender.
SECTION 2.08. Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) for each day during each Interest Period with
respect thereto at a rate per annum equal to (i) the LIBO Rate determined for
such Interest Period, plus (ii) the Applicable Rate.
(b) Each ABR Loan (including each Swingline Loan) shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 365 or 366 days, as the case may be, or over a year of 360 days when the
Alternate Base Rate is determined by reference to clause (c) of the definition
of "Alternate Base Rate") at a rate per annum equal to the Alternate Base Rate
plus the Applicable Rate.
(c) If all or a portion of (i) the principal amount of any Loan,
(ii) any interest payable thereon or (iii) any Commitment Fee or other amount
payable hereunder shall not be paid when due (whether at the stated maturity
thereof or by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum which is (x) in the case of overdue principal
(except as otherwise provided in clause (y) below), the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.08 plus 2.00% per annum or (y) in the case of any overdue interest,
Commitment Fee or other amount, the rate described in Section 2.08(b) applicable
to an ABR Revolving Loan plus 2.00% per annum, in each case from the date of
such nonpayment to (but excluding) the date on which such amount is paid in full
(after as well as before judgment).
(d) Interest on the Loans to each Borrower shall be payable in
arrears on each Interest Payment Date and on the Revolving Credit Maturity Date,
Term A Loan Maturity Date and Term C Loan Maturity Date, as applicable; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan,
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion. Interest in respect of each Loan shall accrue from and
including the first day of an Interest Period to but excluding the last day of
such Interest Period.
SECTION 2.09. Computation of Interest. Each determination of an
interest rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrowers and the Lenders in
the absence of manifest error.
SECTION 2.10. Fees. (a) Each Borrower agrees to pay a commitment fee
(a "Commitment Fee") to each Revolving Lender, for which payment will be made in
arrears through the Administrative Agent on the last day of March, June,
September and December beginning after the Effective Date, and on the Commitment
Fee Termination Date (as defined below). The Commitment Fee due to
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each Revolving Lender shall commence to accrue for a period commencing on the
Effective Date and shall cease to accrue on the date (the "Commitment Fee
Termination Date") that is the later of (i) the date on which the Revolving
Credit Commitment of such Revolving Lender shall be terminated as provided
herein and (ii) the first date after the end of the Revolving Credit Commitment
Period. The Commitment Fee accrued to each Revolving Lender shall equal the
Commitment Fee Percentage multiplied by such Lender's Commitment Fee Average
Daily Amount (as defined below) for the applicable quarter (or shorter period
commencing on the date of this Agreement and ending with such Lender's
Commitment Fee Termination Date). The amount of Commitment Fees payable by each
Borrower shall equal such Borrower's Fee Percentage of the total Commitment Fees
payable. A Revolving Lender's "Commitment Fee Average Daily Amount" with respect
to a calculation period shall equal the average daily amount during such period
calculated using the daily amount of such Revolving Lender's Revolving Credit
Commitment less such Revolving Lender's Revolving Credit Exposure (excluding
clause (c) of the definition thereof for purposes of determining the Commitment
Fee Average Daily Amount only) for any applicable days during such Revolving
Lender's Revolving Credit Commitment Period. All Commitment Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(b) Each Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate equal to the
Applicable Rate for Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure represented by Letters of Credit issued at the request
of such Borrower (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Revolving Lender's Revolving
Credit Commitment terminates and the date on which such Revolving Lender ceases
to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which
shall accrue at the rate of 0.25% per annum on the average daily amount of the
LC Exposure represented by Letters of Credit issued at the request of such
Borrower (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Credit
Commitments and the date on which there ceases to be any LC Exposure, as well as
the Issuing Bank's standard fees with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees (collectively, "LC Fees")
accrued through and including the last day of March, June, September and
December of each calendar year during the Revolving Credit Commitment Period
shall be payable on the third Business Day following such last day, commencing
on the first such date to occur after the Effective Date; provided that all such
fees shall be payable on the date on which the Revolving Credit Commitments
terminate and any such fees accruing after the date on which the Revolving
Credit Commitments terminate shall be payable on demand. Any other fees payable
to the Issuing Bank pursuant to this paragraph shall be payable within 10 days
after demand therefor. All participation fees and fronting fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual
number of days elapsed (including the first day but excluding the last day).
(c) Each Borrower agrees to pay to the Administrative Agent its Fee
Percentage of the administrative fee set forth in the Fee Letter (the "Agent
Fees").
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution. Once paid, none
of the Fees shall be refundable.
SECTION 2.11. Termination, Reduction or Adjustment of Commitments.
(a) Unless previously terminated, (i) the Term C Commitments shall terminate at
5:00 p.m., New York City time, on the Restatement Effective Date and (ii) the
Revolving Credit Commitments shall terminate on the Revolving Credit Maturity
Date.
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(b) The Borrowers shall have the right, upon one Business Day's
notice to the Administrative Agent from each Borrower, to terminate or, from
time to time, reduce the amount of the Revolving Credit Commitments; provided
that no such termination or reduction of Revolving Credit Commitments shall be
permitted if, after giving effect thereto and to any repayments of the Loans
made on the effective date thereof, the Aggregate Revolving Credit Exposure then
outstanding would exceed the Total Revolving Credit Commitment then in effect.
(c) If any prepayment of Term A Borrowings or Term C Borrowings
would otherwise be required pursuant to Section 2.05 but cannot be made because
there are no Term A Borrowings or Term C Borrowings outstanding, or because the
amount of the required prepayment exceeds the outstanding amount of Term A
Borrowings or Term C Borrowings, then, on the date that such prepayment is
required, the Revolving Credit Commitments shall be permanently reduced by an
aggregate amount equal to the amount of the required prepayment, or the excess
of such amount over the outstanding amount of Term A Borrowings and Term C
Borrowings, as the case may be.
(d) Each Borrower shall pay to the Administrative Agent for the
account of the applicable Revolving Lenders, on each date of termination or
reduction of the Revolving Credit Commitments, its Fee Percentage of the
Commitment Fee on the amount of the Revolving Credit Commitments so terminated
or reduced accrued to the date of such termination or reduction.
(e) Each reduction in the Revolving Credit Commitments shall reduce
the Swingline Commitment by an equal percentage.
SECTION 2.12. Inability to Determine Interest Rate; Unavailability
of Deposits; Inadequacy of Interest Rate. If prior to 11:00 a.m., London time,
two Business Days before the first day of any Interest Period, including an
initial Interest Period, for a requested Eurodollar Borrowing:
(i) the Administrative Agent shall have determined in good faith
(which determination shall be conclusive and binding upon the Borrowers)
that, by reason of circumstances affecting the relevant market generally,
adequate and reasonable means do not exist for ascertaining the Adjusted
LIBO Rate for such Eurodollar Borrowing for such Interest Period, or
(ii) the Administrative Agent shall have received notice from a
majority in interest of the Lenders of the applicable Class that the
Adjusted LIBO Rate determined or to be determined for such Interest Period
for such Eurodollar Borrowing 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,
then the Administrative Agent shall give telecopy or telephonic notice thereof
to the applicable Borrower and the Lenders by 12:00 noon, New York City time, on
the same day. The Administrative Agent shall give telecopy or telephonic notice
to the Borrowers and the Lenders as soon as practicable after the circumstances
giving rise to such notice no longer exist, and until such notice has been
given, any affected Eurodollar Loans shall not be (x) converted or continued
pursuant to Section 2.03 or (y) made pursuant to a Borrowing Request, and shall
be continued or made as an ABR Loans, as the case may be.
SECTION 2.13. Pro Rata Treatment and Payments. (a) Each reduction of
the Revolving Credit Commitments of the Revolving Lenders shall be made pro rata
according to the amounts of such Revolving Lenders' Commitment Percentages.
Subject to Section 2.05(e), each payment (including each prepayment) by either
Borrower on account of principal of and interest on Loans made to such Borrower
which are ABR Loans shall be made pro rata according to the respective
outstanding principal amounts of such ABR Loans then held by the Lenders of the
applicable Class. Subject to Section 2.05(e),
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each payment (including each prepayment) by either Borrower on account of
principal of and interest on Loans which are Eurodollar Loans designated by a
Borrower to be applied to a particular Eurodollar Borrowing shall be made pro
rata according to the respective outstanding principal amounts of such Loans
then held by the Lenders of the applicable Class. Each payment (including each
prepayment) by a Borrower on account of principal of and interest on Swingline
Loans made to such Borrower shall be made pro rata according to the respective
outstanding principal amounts of the Swingline Loans or participating interests
therein, as the case may be, then held by the relevant Lenders. All payments
(including prepayments) to be made by either Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff
or counterclaim and shall be made prior to 10:00 a.m., New York time, on the due
date thereof to the Administrative Agent, for the account of the Lenders of the
applicable Class, at the Administrative Agent's New York office specified in
Section 9.01 in the currency in which the applicable obligation is denominated
and in immediately available funds. The Administrative Agent shall distribute
such payments to the Lenders entitled thereto in the same currency as received
and promptly upon receipt in like funds as received. If any payment hereunder
(other than payments on 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, and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension. 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 (and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension) 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. Notwithstanding
the foregoing, to the extent the provisions of this Section 2.13 are
inconsistent with the provisions of Section 1.04, the provisions of Section 1.04
shall be controlling for all purposes of this Agreement.
(b) Subject to Section 2.12, 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 applicable 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 Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this Section 2.13(b) 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 Revolving Loans
hereunder, on demand, from the applicable Borrower, but without prejudice to any
right or claim that such Borrower may have against such Lender.
(c) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
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SECTION 2.14. Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law, or in the
interpretation or application thereof, shall make it unlawful for any Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
forthwith be suspended until such time as the making or maintaining of
Eurodollar Loans shall no longer be unlawful, and (b) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted automatically to ABR
Loans on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law.
SECTION 2.15. Requirements of Law. (a) If at any time any Lender or
the Issuing Bank determines that the introduction of, or any change in or in the
interpretation of, any law, treaty or governmental rule, regulation or order
(other than (i) any change by way of imposition or increase of reserve
requirements included in determining the Adjusted LIBO Rate or (ii) the rate of
tax imposed on the overall net income of such Lender or the Issuing Bank) or the
compliance by such Lender or the Issuing Bank with any guideline, request or
directive from any central bank or other Governmental Authority (whether or not
having the force of law), to the extent such guideline, request or directive is
changed or issued after the Effective Date, shall have the effect of increasing
the cost to such Lender or the Issuing Bank for agreeing to make or making,
funding or maintaining any Eurodollar Loans for either Borrower or participating
in, issuing or maintaining any Letter of Credit for either Borrower, then the
applicable Borrower shall from time to time, within five days of demand therefor
by such Lender or the Issuing Bank (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender or the Issuing Bank additional amounts sufficient to compensate such
Lender or the Issuing Bank for such increased cost; provided that any such
payment shall be without duplication of amounts to which such Lender or Issuing
Bank is entitled under Section 2.16. A certificate as to the amount of such
increased cost, submitted to the applicable Borrower and the Administrative
Agent by such Lender or the Issuing Bank, shall be conclusive and binding for
all purposes, absent manifest error. Such Lender or the Issuing Bank, as
applicable, shall promptly notify the Administrative Agent and the applicable
Borrower in writing of the occurrence of any such event, such notice to state,
in reasonable detail, the reasons therefor and the additional amount required
fully to compensate such Lender or the Issuing Bank, as applicable, for such
increased cost or reduced amount. Such additional amounts shall be payable
directly to such Lender or the Issuing Bank, as applicable, within five days of
such Borrower's receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on such Borrower.
(b) If any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority after
the Effective Date affects or would affect the amount of capital required or
expected to be maintained by any Lender or the Issuing Bank (or a holding
company controlling such Lender or the Issuing Bank) and such Lender or the
Issuing Bank determines in good faith (in its sole and absolute discretion) that
the rate of return on its capital (or the capital of its holding company, as the
case may be) as a consequence of its Revolving Credit Commitment or the Loans
made by it or its participations in Swingline Loans or any issuance,
participation or maintenance of Letters of Credit is reduced to a level below
that which such Lender or the Issuing Bank (or its holding company) could have
achieved but for the occurrence of any such circumstance, then, in any such case
upon notice from time to time by such Lender or the Issuing Bank to the
Borrowers, the Borrowers shall immediately pay directly to such Lender or the
Issuing Bank, as the case may be, on demand additional amounts sufficient to
compensate such Lender or the Issuing Bank (or its holding company) for such
reduction in rate of return. A statement of such Lender or the Issuing Bank as
to any such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrowers. In determining
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such amount, such Lender or the Issuing Bank may use any good faith method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.
(c) In the event that the Issuing Bank or any Lender determines that
any event or circumstance that will lead to a claim under this Section 2.15 has
occurred or will occur, the Issuing Bank or such Lender will use its best
efforts to so notify the applicable Borrower or Borrowers; provided that any
failure to provide such notice shall in no way impair the rights of the Issuing
Bank or such Lender to demand and receive compensation under this Section 2.15,
but without prejudice to any claims of the Borrowers for compensation for actual
damages sustained as a result of any failure to observe this undertaking.
SECTION 2.16. Taxes. (a) All payments by either Borrower of
principal of, and interest on, the Loans and all other amounts payable hereunder
shall be made free and clear of and without deduction for any present or future
income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority on the Administrative Agent, the Issuing Bank or any Lender (or any
assignee of such Lender or the Issuing Bank, as the case may be, or a
Participant or a change in designation of the lending office of a Lender or the
Issuing Bank, as the case may be (a "Transferee")), but excluding franchise
taxes and taxes imposed on or measured by the recipient's net income (such
non-excluded items being called "Taxes") unless required by applicable law, rule
or regulation. In the event that any withholding or deduction from any payment
to be made by either Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then such Borrower will:
(i) pay directly to the relevant authority the full amount required
to be so withheld or deducted;
(ii) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative Agent
evidencing such payment to such authority; and
(iii) pay to the Administrative Agent for the account of the Lenders
or the Issuing Bank, as the case may be, such additional amount or amounts
as are necessary to ensure that the net amount actually received by each
Lender or the Issuing Bank, as the case may be, will equal the full amount
such Lender or the Issuing Bank, as the case may be, would have received
had no such withholding or deduction been required.
(b) If any Taxes are directly asserted against the Administrative
Agent, the Issuing Bank or any Lender or Transferee with respect to any payment
received by the Administrative Agent, the Issuing Bank or such Lender or
Transferee hereunder, the Administrative Agent, the Issuing Bank or such Lender
or Transferee may pay such Taxes and, within 30 days of a written request by the
Administrative Agent, the Issuing Bank or such Lender or Transferee, the
Borrower to which such Taxes relate will pay such additional amounts (including
any penalties, interest or expenses, except to the extent attributable to the
gross negligence or willful misconduct of the Administrative Agent, the Issuing
Bank or any Lender or Transferee) as shall be necessary in order that the net
amount received by such Person after the payment of such Taxes (including any
Taxes on such additional amount) shall equal the amount such Person would have
received had such Taxes not been asserted.
(c) If either Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent, for
the account of the Issuing Bank, the respective Lenders or Transferees, the
required receipts or other required documentary evidence, such Borrower shall
indemnify the Issuing Bank, Lenders and Transferees for any incremental Taxes,
interest, penalties
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or other costs (including reasonable attorneys' fees and expenses) paid by the
Issuing Bank, any Lender or Transferee as a result of any such failure, except
in the case of gross negligence or willful misconduct of the Administrative
Agent, the Issuing Bank or any Lender or Transferee. For purposes of this
Section 2.16, a distribution hereunder by the Administrative Agent to or for the
account of the Issuing Bank, any Lender or Transferee shall be deemed a payment
by the applicable Borrower. Such indemnification shall be paid within 30 days
from the date on which the Issuing Bank or such Lender or Transferee makes
written demand therefor specifying in reasonable detail the basis and
calculation of such amount.
(d) Each Lender or Transferee that is organized under the laws of a
jurisdiction other than the United States of America or any state or political
subdivision thereof shall, on or prior to the Effective Date (in the case of
each Lender that is a party hereto on the Effective Date) or on or prior to the
date of any assignment, participation or change in the designated lending office
hereunder (in the case of a Transferee) and thereafter as reasonably requested
from time to time by either Borrower or the Administrative Agent, execute and
deliver, if legally able to do so, to the applicable Borrower and the
Administrative Agent one or more (as either Borrower or the Administrative Agent
may reasonably request) United States Internal Revenue Service Forms W-8BEN or
such other forms or documents (or successor forms or documents), appropriately
completed, as may be applicable to establish the extent, if any, to which a
payment to such Lender or Transferee is exempt from or entitled to a reduced
rate of withholding or deduction of Taxes. In addition, the Administrative
Agent, the Issuing Bank and any Lender (or Transferee) claiming any additional
amounts payable pursuant to this Section 2.16 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to file any certificate or
document requested in writing by either Borrower, if the making of such a filing
would avoid the need for or reduce the amount of any such additional amounts
which would be payable or may thereafter accrue and would not, in the sole good
faith judgment of the Administrative Agent, the Issuing Bank or such Lender (or
Transferee), be otherwise disadvantageous to such Person.
(e) With respect to obligations under this Agreement other than
those specified in Section 2.16(f), neither Borrower shall be required to
indemnify or to pay any additional amounts to the Issuing Bank, any Lender or
Transferee with respect to any Taxes pursuant to this Section 2.16 to the extent
that (i) any obligation to withhold, deduct or pay amounts with respect to such
Tax existed on the date the Issuing Bank, such Lender or Transferee became a
party to this Agreement or otherwise becomes a Transferee and, in the case of a
Transferee, exceeded the obligation to the Person making the assignment, selling
the participation or effecting such transfer to such Transferee that existed
before the action by which such Transferee becomes a Transferee (and, in such
case, such Borrower may deduct and withhold such Tax from payments to the
Issuing Bank, such Lender or Transferee), or (ii) any Lender or Transferee fails
to comply in full with the provisions of the immediately preceding paragraph
(and, in such case, such Borrower may deduct and withhold all Taxes required by
law as a result of such noncompliance from payments to the Issuing Bank, such
Lender or Transferee).
(f) Notwithstanding anything to the contrary in this Section 2.16,
if the Internal Revenue Service determines that a Lender (or Transferee) is a
conduit entity participating in a conduit financing arrangement as defined in
Section 7701(l) of the Code and the regulations thereunder and neither Borrower
was a participant to such arrangement (other than as the Borrowers under this
Agreement) (a "Conduit Financing Arrangement"), then (i) neither Borrower shall
have any obligation to pay additional amounts or indemnify the Lender or
Transferee for any Taxes with respect to any payments hereunder to the extent
the amount of such Taxes exceeds the amount that would have otherwise been
withheld or deducted had the Internal Revenue Service not made such a
determination and (ii) such Lender or Transferee shall indemnify each Borrower
in full for any and all taxes for which such Borrower is held directly liable
under Section 1461 of the Code by virtue of such Conduit Financing Arrangement;
provided that such Borrower (i) promptly forwards to the indemnitor an official
receipt or other documentation satisfactorily evidencing such payment, (ii)
shall contest such tax upon the reasonable request of the
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indemnitor and at such indemnitor's cost and (iii) shall pay to such indemnitor
within 30 days any refund of such taxes (including interest thereon). Each
Lender or Transferee represents that it is not participating in a Conduit
Financing Arrangement.
(g) In the event that the Issuing Bank or any Lender determines that
any event or circumstance that will lead to a claim by it under this Section
2.16 has occurred or will occur, the Issuing Bank or such Lender will use its
best efforts to so notify the applicable Borrower; provided that any failure to
provide such notice shall in no way impair the rights of the Issuing Bank or any
Lender to demand and receive compensation under this Section 2.16, but without
prejudice to any claims of such Borrower for failure to observe this
undertaking.
(h) Notwithstanding anything herein to the contrary, no Transferee
shall be entitled to receive any greater amount pursuant to this Section 2.16
than the Person making the assignment, selling the participation or effecting
the transfer to such Transferee, or any Lender (or Transferee) which changes its
applicable lending office by designating a different lending office, would have
been entitled to receive in the absence of such assignment, participation,
transfer or designation.
SECTION 2.17. Indemnity. In the event any Lender shall incur any
loss or expense (including any loss (other than lost profit) or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to make, continue or maintain any portion of the principal amount
of any Loan as, or to convert any portion of the principal amount of any Loan
into, a Eurodollar Loan) as a result of any conversion of a Eurodollar Loan to
an ABR Loan or repayment or prepayment of the principal amount of any Eurodollar
Loan on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Section 2.03, 2.05, 2.07, 2.14, 2.15 or
2.20 or otherwise, or any failure to borrow or convert any Eurodollar Loan after
notice thereof shall have been given hereunder, whether by reason of any failure
to satisfy a condition to such Borrowing or otherwise, then, upon the written
notice of such Lender to the Borrower to which such Loan was made (with a copy
to the Administrative Agent), such Borrower shall, within five days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the applicable Borrower.
SECTION 2.18. Change of Lending Office. Each Lender (or Transferee)
agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.14, 2.15 or 2.16 with respect to such Lender (or Transferee), it will,
if requested by either Borrower, use commercially reasonable efforts (subject to
overall policy considerations of such Lender (or Transferee)) 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 good faith judgment of such Lender, cause such Lender
and its respective lending offices to suffer no material economic, legal or
regulatory disadvantage; and provided, further, that nothing in this Section
2.18 shall affect or postpone any of the obligations of the Borrowers or the
rights of any Lender (or Transferee) pursuant to Sections 2.14, 2.15 and 2.16.
SECTION 2.19. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against either Borrower, or pursuant to a secured claim under Section 506 of
Title 11 of the United States Code or other security or interest arising from,
or in lieu of, such secured claim received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loans or
participations in LC Disbursements which at the time shall be payable as a
result of which the unpaid principal portion of its Loans and participations in
LC Disbursements which at the time shall be payable shall be proportionately
less than the unpaid principal portion of such Loans and
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participations in LC Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in
such Loans and participations in LC Disbursements of such other Lender, so that
the aggregate unpaid principal amount of such Loans and participations in LC
Disbursements held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all such Loans and participations in LC
Disbursements as prior to such exercise of banker's lien, setoff or counterclaim
or other event; provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase price or
prices or adjustments restored without interest. Each Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in a Loan or an LC Disbursement deemed to have been so purchased
may exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by such Borrower to such Lender by reason
thereof as fully as if such Lender were a direct creditor directly to such
Borrower in the amount of such participation.
SECTION 2.20. Assignment of Commitments Under Certain Circumstances.
In the event that any Lender shall have delivered a notice or certificate
pursuant to Section 2.14 or 2.15, or either Borrower shall be required to make
additional payments to any Lender under Section 2.16 (each, an "Increased Cost
Lender") then, the Borrowers shall have the right, but not the obligation, at
their own expense, upon notice to such Increased Cost Lender (the "Terminated
Lender") and the Administrative Agent, to replace such Terminated Lender with an
assignee (in accordance with and subject to the restrictions contained in
Section 9.04) approved by the Administrative Agent, the Issuing Bank and the
Swingline Lender (which approval shall not be unreasonably withheld), and such
Terminated Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.04) all
its interests, rights and obligations under this Agreement to such assignee;
provided, however, that no Terminated Lender shall be obligated to make any such
assignment unless (i) such assignment shall not conflict with any law or any
rule, regulation or order of any Governmental Authority and (ii) such assignee
or the Borrowers shall pay to the affected Terminated Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by such Terminated Lender and
participations in LC Disbursements and Swingline Loans held by such Terminated
Lender and all commitment fees and other fees owed to such Terminated Lender
hereunder and all other amounts accrued for such Terminated Lender's account or
owed to it hereunder (including, without limitation, any Commitment Fees).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter
into this Agreement and to extend credit hereunder and under the other Loan
Documents on the Effective Date, Homebase, at any time that Homebase is a Loan
Party or, in the event an Intermediate Holdco is formed, such Intermediate
Holdco (as to itself only) and each other Loan Party (as to itself and each of
its Subsidiaries), except to the extent any of the following is limited to a
specific party, make the representations and warranties set forth in this
Article III (after giving effect to the Transactions) and upon the occurrence of
each Credit Event thereafter:
SECTION 3.01. Organization, etc. Each Loan Party (a) is a
corporation or other form of legal entity, and each of its Subsidiaries is a
corporation, partnership or other form of legal entity, validly organized and
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, (b) has all requisite
corporate or other power and authority to carry on its business as now
conducted, (c) is duly qualified to do business and is in good standing as a
foreign
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corporation or foreign partnership (or comparable foreign qualification, if
applicable, in the case of any other form of legal entity), as the case may be,
in each jurisdiction where the nature of its business requires such
qualification, except where the failure to so qualify will not have a Material
Adverse Effect, and (d) has full power and authority and holds all requisite
material governmental licenses, permits and other approvals to enter into and
perform its obligations under this Agreement and each other Loan Document to
which it is a party and to own or hold under lease its Property and to conduct
its business substantially as currently conducted by it.
SECTION 3.02. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each Loan Party of this Agreement and
each other Loan Document to which it is a party, the borrowing of the Loans, the
use of the proceeds thereof and the issuance of the Letters of Credit hereunder
are within each Loan Party's corporate, partnership or comparable powers, as the
case may be, have been duly authorized by all necessary corporate, partnership
or comparable and, if required, stockholder action, as the case may be, and do
not
(a) contravene the Organic Documents of any Loan Party or any of its
respective Subsidiaries;
(b) contravene any material law, statute, rule or regulation binding
on or affecting any Loan Party or any of its respective Subsidiaries;
(c) except as set forth on Schedule 3.02(c) of the Original Credit
Agreement, violate or result in a default or event of default or an
acceleration of any rights or benefits under any material indenture,
agreement or other instrument binding upon any Loan Party or any of its
respective Subsidiaries; or
(d) result in, or require the creation or imposition of, any Lien on
any material asset of any Loan Party or any of its respective
Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.03. Government Approval, Regulation, etc. No consent,
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or regulatory body or other Person is required for
the due execution, delivery or performance by the Borrowers or any other Loan
Party of this Agreement or any other Loan Document which has been entered into,
the borrowing of the Loans, the use of the proceeds thereof and the issuance of
Letters of Credit hereunder, nor for the consummation of the Transactions,
except such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens under the Security Documents. No Loan
Party or any of its respective Subsidiaries is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.04. Validity, etc. This Agreement has been duly executed
and delivered by each Loan Party and constitutes, and each other Loan Document
to which any Loan Party is to be a party will, on the due execution and delivery
thereof and assuming the due execution and delivery of this Agreement by each of
the other parties hereto, constitute, the legal, valid and binding obligation of
such Loan Party enforceable in accordance with its respective terms, subject to
the effect of bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors' rights generally and to general
principles of equity.
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SECTION 3.05. Representations and Warranties in the Acquisition
Agreement. Each of the representations and warranties set forth in Article III
of the Acquisition Agreement was true and correct as of the Effective Date to
the extent required by the Acquisition Agreement (without giving effect to any
waiver thereof).
SECTION 3.06. Financial Information. (a) The consolidated balance
sheets of (i) the CCI Borrower and its Subsidiaries as of December 31, 2001,
2002 and 2003, reported on by Ernst & Young LLP, independent public accountants,
and (ii) TXUCV and its Subsidiaries as of December 31, 2001, 2002 and 2003,
reported on by Deloitte & Touche LLP, and, in each case, the related
consolidated statements of earnings and cash flows of such Person and its
Subsidiaries for the three years ended December 31, 2003, copies of which have
been furnished to the Administrative Agent and each Lender, have been prepared
in accordance with GAAP consistently applied, and present fairly in all material
respects the consolidated financial condition of (x) the CCI Borrower and its
Subsidiaries (in the case of the financial statements referred to in clause (i)
above) and (y) TXUCV and its Subsidiaries (in the case of the financial
statements referred to in clause (ii) above) as of the dates thereof and the
results of their operations and cash flows for the periods then ended.
(b) On the Effective Date, except for the Obligations, as disclosed
in the financial statements referred to above or the notes thereto or in the
Information Memorandum or on Schedule 3.06(b) of the Original Credit Agreement,
neither the Loan Parties nor any of their Subsidiaries has any Indebtedness,
material contingent liabilities, long-term commitments or unrealized losses.
SECTION 3.07. No Material Adverse Effect. Since December 31, 2003,
no event or circumstance has occurred that has had, or could reasonably be
expected to have, a Material Adverse Effect.
SECTION 3.08. Litigation. Except as set forth on Schedule 3.08 of
the Original Credit Agreement, there is no pending or, to the knowledge of any
Loan Party, threatened litigation, action or proceeding (including, without
limitation, any existing or new litigation relating to the Transactions)
affecting any Loan Party or any of their respective Subsidiaries' operations,
properties, businesses, assets or prospects, or the ability of the parties to
consummate the transactions contemplated hereby, which, in the case of Homebase
and the Restricted Group, would have a Material Adverse Effect or which purports
to affect the legality, validity or enforceability of this Agreement, the
Acquisition Documents, any other Loan Document, the Transactions or the other
transactions contemplated hereby.
SECTION 3.09. Compliance with Laws and Agreements. None of the Loan
Parties has violated, is in violation of or has been given written notice of any
violation of any law (other than Environmental Laws, which are the subject of
Section 3.14), regulation or order of any Governmental Authority applicable to
it or its property or any indenture, agreement or other instrument binding upon
it or its property, except for any violations which do not have a Material
Adverse Effect. No Default has occurred and is continuing.
SECTION 3.10. Subsidiaries. Schedule 3.10 of the Original Credit
Agreement sets forth the name of, type of entity, and the direct or indirect
ownership interest of Homebase and its Subsidiaries (including the legal
structure) or other investment of Homebase and identifies each Subsidiary of
Homebase that is a Loan Party, in each case as of the Effective Date and after
giving effect to the Transactions.
SECTION 3.11. Ownership of Properties. (a) Each Loan Party and its
Subsidiaries has good and marketable title to (or other similar title in
jurisdictions outside the United States of America), or valid leasehold
interests in, or easements or other limited property interests in, or is
licensed to
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use, all its material properties and assets (including all Mortgaged
Properties), except where the failure to have such title in the aggregate could
not reasonably be expected to have a Material Adverse Effect. All Mortgaged
Properties are free and clear of Liens, except for Prior Liens and all of such
other properties are free and clear of Liens, other than Permitted Liens.
(b) As of the Effective Date, Schedule 3.11(b) of the Original
Credit Agreement contains and will contain a true and complete list of each
parcel of Real Property (i) owned by any Loan Party as of the Effective Date and
describes the type of interest therein held by such Loan Party and (ii) leased,
subleased or otherwise occupied or utilized by any Loan Party, as lessee, as of
the Effective Date and describes the type of interest therein held by such Loan
Party and whether such lease, sublease or other instrument requires the consent
of the landlord thereunder or other parties thereto to the Transactions.
(c) Each member of the Restricted Group has complied with all
obligations under all leases to which it is a party, except where the failure to
comply would not have a Material Adverse Effect, and all such leases are in full
force and effect, except leases in respect of which the failure to be in full
force and effect could not reasonably be expected to have a Material Adverse
Effect. Each member of the Restricted Group enjoys peaceful and undisturbed
possession under all such leases, other than leases in respect of which the
failure to enjoy peaceful and undisturbed possession could not reasonably be
expected to, individually or in the aggregate, have a Material Adverse Effect.
(d) Each member of the Restricted Group owns, possesses, is licensed
or otherwise has the right to use, or could obtain ownership or possession of,
on terms not materially adverse to it, all patents, trademarks, service marks,
trade names, copyrights, licenses and rights with respect thereto necessary for
the present conduct of its business, without any known conflict with the rights
of others, except where such conflicts could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(e) As of the Effective Date, no member of the Restricted Group has
received any written notice of, or has any knowledge of, any pending or
contemplated condemnation proceeding affecting any of the Mortgaged Properties
or any sale or disposition thereof in lieu of condemnation that remains
unresolved as of the Effective Date.
(f) No member of the Restricted Group is obligated on the Effective
Date under any right of first refusal, option or other contractual right to
sell, assign or otherwise dispose of any Mortgaged Property or any interest
therein.
(g) No Loan Party or any of its Subsidiaries has received any notice
of, nor has any knowledge of, the occurrence or pendency or contemplation of any
Taking or Destruction affecting all or any portion of its property. 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 within the meaning of the National Flood Insurance Act of
1968 unless flood insurance available under such Act has been obtained in
accordance with Section 5.04.
SECTION 3.12. Taxes. Each Loan Party and each Subsidiary has filed
all federal, foreign and all other material income tax returns and reports
required by law to have been filed by it and has paid all material taxes and
governmental charges due, except any such taxes or charges which are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books; provided that, in the case of any taxes that are being contested, any
such contest of taxes or charges with respect to Collateral shall satisfy the
Contested Collateral Lien Conditions.
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SECTION 3.13. Pension and Welfare Plans. No ERISA Event has occurred
or is reasonably expected to occur which could reasonably be expected to have a
Material Adverse Effect or give rise to a Lien on the assets of any member of
the Restricted Group. Each Loan Party and each of their ERISA Affiliates are in
compliance in all respects with the presently applicable provisions of ERISA and
the Code with respect to each Plan except for failures to so comply which could
not reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 3.13 of the Original Credit Agreement, no condition exists or
event or transaction has occurred with respect to any Plan which reasonably
might result in the incurrence by any Loan Party or any ERISA Affiliate of any
liability, fine or penalty which could reasonably be expected to have a Material
Adverse Effect. No Loan Party or Subsidiary has any contingent liability with
respect to post-retirement benefits provided under a Welfare Plan, other than
(i) liability for continuation coverage described in Part 6 of Subtitle B of
Title I of ERISA and (ii) liabilities that, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
Except as could not reasonably be expected to have a Material
Adverse Effect, (a) each Foreign Plan has been maintained in compliance with its
terms and with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities, and (b) no Loan Party or Subsidiary has
incurred any obligation in connection with the termination of or withdrawal from
any Foreign Plan.
SECTION 3.14. Environmental Warranties. (a) Except as set forth on
Schedule 3.14(a) of the Original Credit Agreement, all facilities and property
owned, leased or operated by any member of the Restricted Group, and all
operations conducted thereon, are in compliance with all Environmental Laws,
except for such noncompliance that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(b) Except as set forth on Schedule 3.14(b) of the Original Credit
Agreement, there are no pending or threatened (in writing):
(i) Environmental Claims received by any member of the Restricted
Group, or
(ii) written claims, complaints, notices or inquiries received by
any member of the Restricted Group regarding Environmental Liability, in each
case which, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
(c) Except as set forth on Schedule 3.14(c) of the Original Credit
Agreement, there have been no Releases of Hazardous Materials at, on, under or
from any property now or, to any Loan Party's knowledge, previously owned,
leased or operated by any member of the Restricted Group that, individually or
in the aggregate, have had or could reasonably be expected to have a Material
Adverse Effect.
(d) The members of the Restricted Group have been issued and are in
compliance with all Environmental Permits necessary for their operations,
facilities and businesses and each is in full force and effect, except for such
Environmental Permits which, if not so obtained or as to which the members of
the Restricted Group are not in compliance, or are not in effect, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(e) Except as set forth on Schedule 3.14(e) of the Original Credit
Agreement, no property now or, to any Loan Party's knowledge, previously owned,
leased or operated by any member of
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the Restricted Group is listed or proposed (with respect to owned property only)
for listing on the CERCLIS or on any similar state list of sites requiring
investigation or clean-up, or on the National Priorities List pursuant to
CERCLA.
(f) There are no underground storage tanks, active or abandoned,
including petroleum storage tanks, surface impoundments or disposal areas, on or
under any property now or, to any Loan Party's knowledge, previously owned or
leased by any member of the Restricted Group which, singly or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(g) No member of the Restricted Group has transported or arranged
for the transportation of any Hazardous Material to any location which is listed
or proposed for listing on the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list or which is the subject of federal,
state or local enforcement actions or other investigations which would
reasonably be expected to lead to any Environmental Claim against any member of
the Restricted Group.
(h) No liens have been recorded pursuant to any Environmental Law
with respect to any property or other assets currently owned or leased by any
member of the Restricted Group.
(i) No member of the Restricted Group is currently conducting any
Remedial Action pursuant to any Environmental Law, nor has any member of the
Restricted Group assumed by contract, agreement or operation of law any
obligation under Environmental Law, the cost of which, singly or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
(j) There are no polychlorinated biphenyls or friable asbestos
present at any property owned, leased or operated by any member of the
Restricted Group, which, singly or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.15. Regulations U and X. The Loans, the use of the
proceeds thereof, the Transactions, this Agreement and the transactions
contemplated hereby will not result in a violation of or be inconsistent with
any provision of Regulation U or Regulation X.
SECTION 3.16. Disclosure; Accuracy of Information; Pro Forma Balance
Sheets and Projected Financial Statements. (a) The Loan Parties have disclosed
to the Lenders all agreements, instruments and corporate or other restrictions
to which they and their Subsidiaries are subject, and all other matters known to
any of them that, individually or in the aggregate, could reasonably be expected
to have a Material Adverse Effect. Neither this Agreement nor any other
document, certificate or statement furnished to the Administrative Agent or any
Lender by or on behalf of any Loan Party in connection herewith (including,
without limitation, the Information Memorandum) contains any untrue statement of
a material fact or omits to state any material fact necessary in order to make
the statements contained herein and therein not misleading, in light of the
circumstances under which they were made; provided that to the extent this or
any such document, certificate or statement (including without limitation the
Information Memorandum) was based upon or constitutes a forecast, estimate or
projection, the Loan Parties represent only that such forecast, estimate or
projection was made in good faith by the Loan Parties and was prepared using
reasonable assumptions and estimates.
(b) The pro forma consolidated balance sheet of Homebase and its
Subsidiaries as of December 31, 2003, prepared giving effect to the Transactions
as if the Transactions had occurred on such date (i) was prepared in good faith
based on the same assumptions used to prepare the pro forma financial statements
included in the Information Memorandum, (ii) accurately reflects all material
adjustments necessary to give effect to the Transactions and (iii) presents
fairly the pro forma financial position
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of Homebase and its Subsidiaries as of the Effective Date, as if the
Transactions had occurred on such date.
(c) The pro forma consolidated income statement projections for the
Restricted Group on a combined basis, pro forma consolidated balance sheet
projections for the Restricted Group on a combined basis and pro forma
consolidated cash flow projections for the Restricted Group on a combined basis
for the Fiscal Years ending 2004 through 2011, inclusive, which have been
prepared on a quarterly basis through and including Fiscal Year 2005 and
annually thereafter (the "Projected Financial Statements"), give appropriate
effect to the Transactions and all Indebtedness and Liens incurred or created in
connection with the Transactions. The assumptions made in preparing the
Projected Financial Statements are believed by each Loan Party to be reasonable
as of the date of such projections and as of the Effective Date and all material
assumptions with respect to the Projected Financial Statements are set forth
therein. The Projected Financial Statements present a good faith estimate of the
consolidated financial information contained therein at the date thereof based
upon estimates or assumptions believed by each Loan Party to be reasonable, it
being recognized by the Administrative Agent and the Lenders, however, that
projections as to future events are not to be viewed as facts and that the
actual results during the period or periods covered by the projections probably
will differ from the projected results and that the difference may be material.
SECTION 3.17. Insurance. As of the Effective Date, set forth on
Schedule 3.17 of the Original Credit Agreement is a summary of all insurance
policies maintained by the Restricted Group (a) with respect to its properties
material to the businesses of the Restricted Group against such casualties and
contingencies and of such types and in such amounts as are customary in the case
of similar businesses operating in the same or similar locations, and (b)
required to be maintained pursuant to the Security Documents. All such insurance
policies are maintained with financially sound and responsible insurance
companies
SECTION 3.18. Labor Matters. Except as could not reasonably be
expected to have a Material Adverse Effect, (a) there are no strikes, lockouts
or slowdowns against any member of the Restricted Group pending or, to the
knowledge of any Loan Party, threatened; (b) the hours worked by and payments
made to employees of members of the Restricted Group have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters; and (c) all payments due from any member
of the Restricted Group, or for which any claim may be made against any member
of the Restricted Group, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of such member of the Restricted Group.
SECTION 3.19. Solvency. Immediately following the Transactions and
immediately after giving effect to each Credit Event, (a) the fair value of the
assets of each member of the Restricted Group, at a fair valuation, will exceed
its debts and probable liabilities, subordinated, contingent or otherwise; (b)
the present fair saleable value of the property of each member of the Restricted
Group will be greater than the amount that will be required to pay the probable
liability of its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each member of the Restricted Group will be able to pay its debts and probable
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) no member of the Restricted
Group will have unreasonably small capital with which to conduct the business in
which it is engaged as such business is now conducted and is proposed to be
conducted.
SECTION 3.20. Securities. The Equity Interests of each member of the
Restricted Group have been duly authorized, issued and delivered and are fully
paid, nonassessable and free of preemptive rights. The Equity Interests of each
Subsidiary held, directly or indirectly, by any Loan Party are
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owned, directly or indirectly, by such Loan Party free and clear of all Liens
(other than Liens under the Security Documents). There are not, as of the
Effective Date, any existing options, warrants, calls, subscriptions,
convertible or exchangeable securities, rights, agreements, commitments or
arrangements for any Person to acquire any Equity Interests of any member of the
Restricted Group or any other securities convertible into, exchangeable for or
evidencing the right to subscribe for any such Equity Interests.
SECTION 3.21. Indebtedness Outstanding. (a) Set forth on Schedule
3.21(a) of the Original Credit Agreement is a list and description of all
Indebtedness of any member of the Restricted Group (other than the Loans and the
Senior Notes) that was outstanding immediately after the Effective Date (such
Indebtedness, excluding any Indebtedness permitted by Section 6.01(xii), being
referred to as the "Indebtedness to Remain Outstanding").
(b) Set forth on Schedule 3.21(b) of the Original Credit Agreement
is a list and description of all Indebtedness of any member of the Restricted
Group that was repaid, defeased, transferred or otherwise terminated on or prior
to the Effective Date (the "Indebtedness to Be Paid").
(c) Set forth on Schedule 3.21(c) of the Original Credit Agreement
is a list and description of all Liens of any member of the Restricted Group
that were repaid, defeased, transferred or otherwise terminated on or prior to
the Effective Date.
(d) Set forth on Schedule 3.21(d) of the Original Credit Agreement
is a list and description of all Liens of Homebase or any member of the
Restricted Group (other than Permitted Liens (other than Liens permitted by
clause (6.02(iv)) that were outstanding immediately after the Effective Date.
SECTION 3.22. Security Documents. (a) The Pledge Agreement and the
Homebase Pledge and Guarantee Agreement are effective to create in favor of the
Collateral Agent for its benefit and the benefit of the Secured Parties, legal,
valid and enforceable security interests in the Securities Collateral (as
defined in the applicable agreement) and, when such Securities Collateral is
delivered to the Collateral Agent, the Collateral Agent shall have a fully
perfected Lien on, and security interest in, all right, title and interest of
the pledgor thereunder in such Securities Collateral.
(b) (i) The Security Agreement and, when and if executed, the ICTC
Security and Guarantee Agreement are effective to create in favor of the
Collateral Agent, for its benefit and the benefit of the Secured Parties, legal,
valid and enforceable security interests in the Collateral described therein and
(ii) when (x) financing statements in appropriate form are filed in the offices
specified on Schedule 7 to the Perfection Certificate and (y) upon the taking of
possession or control by the Collateral Agent of any such Collateral in which a
security interest may be perfected only by possession or control (which
possession or control shall be given to the Collateral Agent to the extent
possession or control by the Collateral Agent is required by the Security
Agreement), the Collateral Agent shall have a fully perfected Lien on, and
security interest in, all right, title and interest of the grantors thereunder
in such Collateral (other than the Intellectual Property (as defined in the
Security Agreement)) to the extent such Lien and security interest can be
perfected by the filing of a financing statement pursuant to the UCC or by
possession or control by the Collateral Agent, in each case prior and superior
in right to any other Person, other than with respect to Permitted Liens.
(c) When the filings in clause (b)(ii)(x) above are made and when
the Security Agreement (or a summary thereof) is filed in the United States
Patent and Trademark Office and the United States Copyright Office, the
Collateral Agent shall have a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in the Intellectual Property
(as defined in the Security Agreement) in which a security interest may be
perfected by filing, recording or registering a secu-
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rity agreement, financing statement or analogous document in the United States
Patent and Trademark Office or the United States Copyright Office, as applicable
(it being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a Lien on registered trademarks, trademark applications and copyrights
acquired by the Loan Parties after the Effective Date), in each case prior and
superior in right to any other Person other than with respect to Permitted
Liens.
(d) Each Mortgage executed and delivered as of the Effective Date
is, or, to the extent any Mortgage is duly executed and delivered thereafter by
the relevant member of the Restricted Group, will be, effective to create in
favor of the Collateral Agent, for its benefit and the benefit of the Secured
Parties, a legal, valid and enforceable Lien on and security interest in all of
the Loan Parties' right, title and interest in and to the Mortgaged Properties
thereunder and the proceeds thereof, and when the Mortgages are filed in the
offices specified on Schedule 3.22(d) of the Original Credit Agreement, the
Mortgages shall constitute a Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Mortgaged Properties and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Prior Liens.
SECTION 3.23. Anti-Terrorism Laws. (a) No Loan Party nor any of
their respective Subsidiaries or, to the knowledge of any of the Loan Parties,
any of their Affiliates is in violation of any laws relating to terrorism or
money laundering ("Anti-Terrorism Laws"), including Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 (the "Executive Order"), and
the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
(b) No Loan Party or Subsidiary of any Loan Party or, to the
knowledge of any of the Loan Parties, any of their Affiliates or their
respective brokers or other agents acting or benefiting in any capacity in
connection with the Loans is any of the following:
(i) a Person or entity that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order;
(ii) a Person or entity owned or controlled by, or acting for or on
behalf of, any Person or entity that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order;
(iii) a Person or entity with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens or conspires to
commit or supports "terrorism" as defined in the Executive Order; or
(v) a Person or entity that is named as a "specially designated
national and blocked person" on the most current list published by the U.S.
Treasury Department Office of Foreign Assets Control at its official website or
any replacement website or other replacement official publication of such list.
(c) No Loan Party or Subsidiary of any Loan Party or, to the
knowledge of any Loan Party, any of their Affiliates or their respective brokers
or other agents acting in any capacity in connection with the Loans (i) conducts
any business or engages in making or receiving any contribution of funds, goods
or services to or for the benefit of any Person described in clause (b) above,
(ii) deals in, or otherwise engages in any transaction relating to, any property
or interests in property blocked pursuant to
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the Executive Order, or (iii) engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism
Law.
ARTICLE IV
CONDITIONS
SECTION 4.01. Restatement Effective Date. The amendments of the
Original Credit Agreement effected hereby and the Term C Commitments of the Term
C Lenders shall not become effective until the date (the "Restatement Effective
Date") on which each of the following conditions and the conditions in Section
4.02 are satisfied (or waived in accordance with the terms hereof):
(a) Administrative Agent (or its counsel) shall have received from
(i) the Requisite Lenders (as defined in the Original Credit Agreement) an
original or telecopy transmission of a signed consent to the amendment and
restatement of the Original Credit Agreement to occur on the Restatement
Effective Date, (ii) Term C Lenders, original or telecopy transmissions of
Lender Addendums providing aggregate commitments (or, in the case of Term
B Lenders, with respect to Term B Loans to be converted pursuant to
Section 1.04(c), a signed consent to the amendment and restatement of the
Original Credit Agreement to occur on the Restatement Effective Date) with
respect to the entire aggregate principal amount of the Term C Commitments
and (iii) Homebase, Illinois Holdings, Texas Holdings and each Borrower,
an original or telecopy transmission of a signed counterpart to this
Agreement.
(b) Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the amendment effected hereby, the
borrowing of and conversion to the Term C Loans, the repayment and
conversion of the Term B Loans and the other transactions contemplated
hereby and any other legal matters relating to the Loan Parties or the
Loan Documents, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(c) Administrative Agent shall have received a certificate, dated
the Restatement Effective Date and signed by the President, a Vice
President or a Financial Officer of Homebase, confirming compliance with
the conditions set forth in this Section 4.01 and Section 4.02.
(d) Administrative Agent shall have received payment of all fees
and other amounts due and payable on or prior to the Restatement Effective
Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel) required to be reimbursed or paid by a Loan
Party hereunder, under the Fee Letter or under any other Loan Document.
(e) The Administrative Agent shall be satisfied with any
amendments deemed necessary or appropriate by Administrative Agent to any
Loan Documents to provide the benefits thereof to the Term C Loans and the
obligations of the Loan Parties in connection therewith on the same basis
as such benefits are provided to the Term B Loans prior to the Restatement
Effective Date and, in connection therewith, the Administrative Agent
shall have received counterparts of such amendments (which shall be in
form and substance reasonably acceptable to Administrative Agent) duly
authorized, executed and acknowledged (to the extent necessary or
appropriate) by the applicable Loan Parties intended to be a party thereto
and such evidence as may be reasonably requested by it to evidence that
the Liens granted to the Collateral Agent under the Secu-
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rity Documents continue to constitute valid, enforceable and perfected
Liens on Collateral that secures the Obligations under this Agreement
after the Restatement Effective Date (including the Obligations comprised
of the Term C Loans).
(f) Administrative Agent shall have received (i) an opinion of
King & Spalding LLP, special counsel to the Loan Parties, and (ii) such
opinions of regulatory counsel and of local counsel to the Loan Parties as
may be reasonably requested by Administrative Agent or its counsel.
(g) Administrative Agent shall have received an executed amendment
to the Acknowledgement of Limitation on Remedies in order to amend the
definition of "Credit Agreement" contained therein so that references to
such term shall refer to this Agreement.
Notwithstanding the foregoing, the amendments of the Original Credit Agreement
that would be effected hereby and the obligations of the Lenders to make the
Loans contemplated to be made on the Restatement Effective Date shall not become
effective unless each of the foregoing conditions and the conditions set forth
in Section 4.02 are satisfied (or waived pursuant to the terms hereof) at or
prior to 5:00 p.m., New York City time, on October 22, 2004 (and, in the event
such conditions are not so satisfied or waived, the Original Credit Agreement
shall remain in effect without giving effect to any amendments thereto
contemplated hereby). Administrative Agent shall notify the Borrowers and the
Lenders of the Restatement Effective Date, and such notice shall be conclusive
and binding.
SECTION 4.02. Conditions to Each Credit Event. The agreement of each
Lender (including any Person with a Term C Commitment) to make any Loan
(including pursuant to a Term C Commitment on the Restatement Effective Date)
and of the Issuing Bank to issue, amend, renew or extend any Letter of Credit
(such event being called a "Credit Event") (excluding continuations and
conversions of Loans) requested to be made by it on any date is subject to the
satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such
Credit Event as required by Section 2.02, 2.04 or 2.06, as applicable.
(b) The representations and warranties made by each Loan Party set
forth in Article III hereof and in the other Loan Documents shall be true
and correct with the same effect as if then made (unless expressly stated
to relate to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date).
(c) At the time of and immediately after such Credit Event, no
Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the applicable Borrower on the date of such Credit Event, as to the matters
specified in paragraphs (b) and (c) of this Section 4.02.
ARTICLE V
AFFIRMATIVE COVENANTS
Each Loan Party hereby covenants and agrees with the Lenders that on
or after the Effective Date and until the Commitments have expired or terminated
and the principal of and interest on each Loan and all fees and other amounts
payable hereunder or under any other Loan Document have been
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paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed:
SECTION 5.01. Financial Information, Reports, Notices, etc. The
Borrowers will furnish, or will cause to be furnished, to each Lender and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 45 days (or such
shorter period for the filing of CCI Illinois Holdings' and CCI Texas
Holdings' Form 10-Q as may be required by the SEC) after the end of each
of the first three Fiscal Quarters of each Fiscal Year of CCI Illinois
Holdings and CCI Texas Holdings, commencing with the Fiscal Quarter ending
June 30, 2004 (and the separate consolidated financial statements of the
CCI Borrower and TXUCV shall be provided for the Fiscal Quarter ended
March 31, 2004), a combined consolidated and consolidating balance sheet
of CCI Illinois Holdings and CCI Texas Holdings as of the end of such
Fiscal Quarter and combined consolidated and consolidating statements of
earnings and cash flow of CCI Illinois Holdings and CCI Texas Holdings for
such Fiscal Quarter and for the same period in the prior Fiscal Year and
for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, certified by a Financial
Officer of each Borrower;
(b) as soon as available and in any event within 90 days (or such
shorter period as may be required for the filing of CCI Illinois Holdings'
and CCI Texas Holdings' Form 10-K by the SEC) after the end of each Fiscal
Year of CCI Illinois Holdings and CCI Texas Holdings, commencing with the
Fiscal Year ending December 31, 2004, a copy of the annual audit report
for such Fiscal Year for CCI Illinois Holdings and CCI Texas Holdings on a
combined consolidated basis, including therein a combined consolidated
balance sheet of CCI Illinois Holdings and CCI Texas Holdings as of the
end of such Fiscal Year and combined consolidated statements of earnings
and cash flow of CCI Illinois Holdings and CCI Texas Holdings for such
Fiscal Year, in each case certified (without any Impermissible
Qualification) in a manner acceptable to the Administrative Agent by Ernst
& Young LLP or other independent public accountants reasonably acceptable
to the Administrative Agent, together with a certificate from a Financial
Officer of each Borrower (a "Compliance Certificate") containing a
computation in reasonable detail of, and showing compliance with, each of
the financial ratios and restrictions contained in the Financial Covenants
and to the effect that, in making the examination necessary for the
signing of such certificate, such Financial Officers have not become aware
of any Default that has occurred and is continuing, or, if such Financial
Officers have become aware of such Default, describing such Default and
the steps, if any, being taken to cure it, and concurrently with the
delivery of the foregoing financial statements, a certificate of the
accounting firm that reported on such financial statements stating whether
they obtained knowledge during the course of their examination of such
financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines); and additionally
consolidating financial information corresponding to the audited financial
statements required above shall concurrently be provided;
(c) as soon as available and in any event within 45 days (or such
shorter period as may be required for the filing of CCI Illinois Holdings'
and CCI Texas Holdings' Form 10-Q by the SEC) after the end of each Fiscal
Quarter, a Compliance Certificate containing a computation in reasonable
detail of, and showing compliance with, each of the financial ratios and
restrictions contained in the Financial Covenants and to the effect that,
in making the examination necessary for the signing of such certificate,
such Financial Officers have not become aware of any Default that has
occurred and is continuing, or, if such Financial Officers have become
aware of such Default, describing such Default and the steps, if any,
being taken to cure it;
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(d) no later than 10 days prior to the commencement of each Fiscal
Year of the Restricted Group, a detailed consolidated budget by Fiscal
Quarter for such Fiscal Year (including a projected combined balance sheet
and related statements of projected operations and cash flow as of the end
of and for each Fiscal Quarter during such Fiscal Year and a narrative
description from a Financial Officer describing such consolidated budget,
in form satisfactory to the Administrative Agent) and the succeeding
Fiscal Years through the Term C Loan Maturity Date (including a projected
combined balance sheet and related statements of projected operations and
cash flow as of the end of and for each Fiscal Quarter during such Fiscal
Year) and, promptly when available, any significant revisions of such
budgets;
(e) promptly upon receipt thereof, copies of all reports submitted
to Homebase or any member of the Restricted Group by independent certified
public accountants in connection with each annual, interim or special
audit of the books of Homebase or any member of the Restricted Group made
by such accountants, including any management letters submitted by such
accountants to management in connection with their annual audit;
(f) as soon as possible and in any event within three Business
Days after becoming aware of the occurrence of any Default, a statement of
a Financial Officer of each Borrower setting forth details of such Default
and the action which each Borrower has taken and proposes to take with
respect thereto;
(g) as soon as possible and in any event within five Business Days
after (i) the occurrence of any adverse development with respect to any
litigation, action or proceeding that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect or (ii) the
commencement of any litigation, action or proceeding that could reasonably
be expected to have a Material Adverse Effect or that purports to affect
the legality, validity or enforceability of this Agreement or any other
Loan Document or the transactions contemplated hereby or thereby, notice
thereof and copies of all documentation relating thereto;
(h) (i) before the first Public Equity Offering that results in a
Public Market, promptly after the sending or filing thereof, copies of all
reports which CCI Holdings and CCI Texas Holdings send to any of their
debt holders, and all reports, registration statements (other than on Form
S-8 or any successor form) or other materials (including affidavits with
respect to reports) which CCI Illinois Holdings and CCI Texas Holdings or
any of their Subsidiaries or any of their officers files with the SEC or
any national securities exchange, and (ii) on or after the first Public
Equity Offering that results in a Public Market, promptly after the
sending or filing thereof, copies of all reports which CCI Holdings and
CCI Texas Holdings send to any of their security holders, and all reports,
registration statements (other than on Form S-8 or any successor form) or
other materials (including affidavits with respect to reports) which CCI
Illinois Holdings and CCI Texas Holdings or any of their Subsidiaries or
any of their officers files with the SEC or any national securities
exchange;
(i) promptly upon becoming aware of the taking of any specific
actions by the Loan Parties, their Subsidiaries or any other Person to
terminate any Pension Plan (other than a termination pursuant to Section
4041(b) of ERISA which can be completed without the Loan Parties, their
Subsidiaries or any ERISA Affiliate having to provide more than $1.0
million in addition to the normal contribution required for the plan year
in which termination occurs to make such Pension Plan sufficient), or the
occurrence of an ERISA Event which could result in a Lien on the assets of
any Loan Party or any of their respective Subsidiaries or in the
incurrence by any Loan Party or any of their respective Subsidiaries of
any liability, fine or penalty which could reasonably be expected to have
a Material Adverse Effect, or any increase in the contingent liability of
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any Loan Party or any of their respective Subsidiaries with respect to any
post-retirement Welfare Plan benefit if the increase in such contingent
liability which could reasonably be expected to have a Material Adverse
Effect, notice thereof and copies of all documentation relating thereto;
(j) upon request by the Administrative Agent, copies of: (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by Homebase or any Loan Party or any of their respective
Subsidiaries or ERISA Affiliates with the Internal Revenue Service with
respect to each Pension Plan; (ii) the most recent actuarial valuation
report for each Pension Plan; (iii) all notices received by any Loan Party
or any of their respective Subsidiaries or ERISA Affiliates from a
Multiemployer Plan sponsor or any governmental agency concerning an ERISA
Event; and (iv) such other documents or governmental reports or filings
relating to any Plan as the Administrative Agent shall reasonably request;
(k) as soon as possible, notice of any other development that
could reasonably be expected to have a Material Adverse Effect;
(l) simultaneously with the delivery of financial statements
pursuant to Sections 5.01(a) and (b), certifications by the chief
executive officer and the chief financial officer or others under the
Exchange Act, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, as amended, and/or the rules
and regulations of the SEC, without any exceptions or qualifications; and
(m) such other information respecting the condition or operations,
financial or otherwise, of any Loan Party or any of their respective
Subsidiaries as any Lender through the Administrative Agent may from time
to time reasonably request.
SECTION 5.02. Compliance with Laws, etc. The Loan Parties will, and
will cause each of their Subsidiaries to, comply in all respects with all
applicable laws, rules, regulations and orders, except where such noncompliance,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, such compliance to include, subject to the foregoing
(without limitation):
(a) the maintenance and preservation of their existence and their
qualification as a foreign corporation, limited liability company or
partnership (or comparable foreign qualification, if applicable, in the
case of any other form of legal entity), and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon them or upon their
property except as provided in Section 5.14.
SECTION 5.03. Maintenance of Properties. Each member of the
Restricted Group will maintain, preserve, protect and keep its material
properties and material assets in good repair, working order and condition, and
make necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times; provided that nothing in this Section 5.03 shall prevent any member of
the Restricted Group from discontinuing the operation and maintenance of any of
its properties if such discontinuance is, in the reasonable commercial judgment
of such member of the Restricted Group, desirable in the conduct of its or their
business and does not in the aggregate have a Material Adverse Effect.
SECTION 5.04. Insurance. Each member of the Restricted Group will
maintain or cause to be maintained with financially sound and responsible
insurance companies (a) insurance with respect to their properties material to
the business of the Restricted Group against such casualties and contingencies
and of such types and in such amounts with such deductibles as is customary in
the case of
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similar businesses operating in the same or similar locations (including,
without limitation, (i) physical hazard insurance on an "all risk" basis, (ii)
commercial general liability against claims for bodily injury, death or property
damage covering any and all claims, (iii) explosion insurance in respect of any
boilers, machinery or similar apparatus constituting Collateral, (iv) business
interruption insurance, (v) worker's compensation insurance as may be required
by any Requirement of Law, (vi) with respect to each Mortgaged Property, flood
insurance in such amount as the Administrative Agent may from time to time
require, if at any time the area in which any improvements located on any
Mortgaged Property is designated a "flood hazard area" in any Flood Insurance
Rate Map published by the Federal Emergency Management Agency (or any successor
agency) and otherwise comply with the National Flood Insurance Program as set
forth in the Flood Disaster Protection Act of 1973, as amended from time to time
and (vii) such other insurance against risks as the Administrative Agent may
from time to time require) and (b) all insurance required to be maintained
pursuant to the Security Documents, and will, upon request of the Administrative
Agent, furnish to each Lender at reasonable intervals a certificate of an
Authorized Officer of each Borrower setting forth the nature and extent of all
insurance maintained by any member of the Restricted Group in accordance with
this Section. Each such insurance policy shall provide that (i) it may not be
cancelled or otherwise terminated without at least thirty (30) days' prior
written notice to the Collateral Agent (and to the extent any such policy is
cancelled, modified or renewed, the Borrowers shall deliver a copy of the
renewal or replacement policy (or other evidence thereof) to the Administrative
Agent and the Collateral Agent, or insurance certificate with respect thereto,
together with evidence satisfactory to the Administrative Agent and Collateral
Agent of the payment of the premium therefor); (ii) the Collateral Agent is
permitted to pay any premium therefor within thirty (30) days after receipt of
any notice stating that such premium has not been paid when due; (iii) all
losses thereunder shall be payable notwithstanding any act or negligence of any
member of the Restricted Group or its agents or employees which otherwise might
have resulted in a forfeiture of all or a part of such insurance payments; (iv)
to the extent such insurance policy constitutes property insurance, all losses
payable thereunder in an amount in excess of $1.0 million shall be payable to
the Collateral Agent, as an additional insured and as loss payee, pursuant to a
standard non-contributory New York mortgagee endorsement and shall be in an
amount at least sufficient to prevent coinsurance liability; provided that the
Collateral Agent, as loss payee pursuant to the foregoing, shall not agree to
the adjustment of any claim without the consent of the applicable Borrower (such
consent not to be unreasonably withheld or delayed); and (v) with respect to
liability insurance, the Collateral Agent shall be named as an additional
insured. Notwithstanding the inclusion in each insurance policy of the provision
described in clause (ii) of the immediately preceding sentence, in the event any
member of the Restricted Group gives the Collateral Agent written notice that it
does not intend to pay any premium relating to any insurance policy when due,
the Collateral Agent shall not exercise its right to pay such premium so long as
such Person delivers to the Collateral Agent a replacement insurance policy or
insurance certificate evidencing that such replacement policy or certificate
provides the same insurance coverage required under this Section 5.04 as the
policy being replaced by such Person with no lapse in such coverage.
SECTION 5.05. Books and Records; Visitation Rights. Each member of
the Restricted Group will keep books and records which accurately reflect its
business affairs in all material respects and material transactions and permit
the Administrative Agent or its representatives, at reasonable times and
intervals and upon reasonable notice, to visit all of its offices, to discuss
its financial matters with its officers and independent public accountant and,
upon the reasonable request of the Administrative Agent or a Lender, to examine
(and, at the expense of the Borrowers, photocopy extracts from) any of its books
or other corporate or partnership records.
SECTION 5.06. Environmental Covenant. Each member of the Restricted
Group will:
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws except for such noncompliance
which, singly or in the aggregate, would not rea-
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sonably be expected to have a Material Adverse Effect, keep all
Environmental Permits in effect and remain in compliance therewith and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except for any noncompliance that would not reasonably
be expected to have a Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies of
all written inquiries, claims, complaints or notices from any Person
relating to the environmental condition of its facilities and properties
or compliance with or liability under any Environmental Law which could
reasonably be expected to have a Material Adverse Effect, and promptly
cure and have dismissed with prejudice or contest in good faith any
actions and proceedings relating thereto;
(c) in the event of the presence of any Hazardous Material on any
Mortgaged Property which is in violation of any Environmental Law or which
could reasonably be expected to have Environmental Liability which
violation or Environmental Liability could reasonably be expected to have
a Material Adverse Effect, each applicable member of the Restricted Group,
upon discovery thereof, shall take all necessary steps to initiate and
expeditiously complete all response, corrective and other action to
mitigate and eliminate any such adverse effect in accordance with and to
the extent required by applicable Environmental Laws, and shall keep the
Administrative Agent informed of their actions;
(d) at the written request of the Administrative Agent or the
Requisite Lenders, which request shall specify in reasonable detail the
basis therefor, each member of the Restricted Group will provide, at such
Person's sole cost and expense, an environmental site assessment report
concerning any Mortgaged Property now or hereafter owned or leased by such
Person, prepared by an environmental consulting firm reasonably acceptable
to the Administrative Agent, indicating the presence or absence of
Hazardous Materials and the potential cost of any Remedial Action in
connection with such Hazardous Materials on, at, under or emanating from
such Mortgaged Property pursuant to any applicable Environmental Law;
provided that such request may be made only if (i) there has occurred and
is continuing an Event of Default or (ii) the Administrative Agent or the
Requisite Lenders reasonably believe that such member of the Restricted
Group or any such Mortgaged Property is not in compliance with
Environmental Law and such noncompliance could reasonably be expected to
have a Material Adverse Effect, or that circumstances exist that could
reasonably be expected to form the basis of an Environmental Claim against
such Person or to result in Environmental Liability, in each case that
could reasonably be expected to have a Material Adverse Effect (in such
events as are listed in this subparagraph, the environmental site
assessment shall be focused upon the noncompliance or other circumstances
as applicable). If any member of the Restricted Group fails to provide the
same within 90 days after such request was made, the Administrative Agent
may order the same, and such member of the Restricted Group shall grant
and hereby grants to the Administrative Agent and the Requisite Lenders
and their agents access to such Mortgaged Property and specifically grants
the Administrative Agent and the Requisite Lenders an irrevocable
non-exclusive license, subject to the rights of tenants, to perform such
an assessment, all at such Person's sole cost and expense; and
(e) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 5.06.
SECTION 5.07. Information Regarding Collateral. (a) Each Loan Party
will furnish to the Collateral Agent prompt written notice of any change (i) in
such Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral
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owned by it is located (including the establishment of any such new office or
facility), (iii) in any Loan Party's identity or corporate structure, (iv) in
any Loan Party's Federal Taxpayer Identification Number or its organizational
identification number or (v) in any Loan Party's jurisdiction of organization.
Each Loan Party agrees not to effect or permit any change referred to in the
preceding sentence unless (i) it shall have given the Collateral Agent thirty
(30) days' prior written notice (or such shorter notice as may be agreed to by
the Collateral Agent) and (ii) all filings have been made under the UCC or
otherwise that are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected security
interest in all the Collateral. Each Loan Party also agrees promptly to notify
the Collateral Agent if any material portion of the Collateral is damaged or
destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding Fiscal Year pursuant to clause (b) of
Section 5.01, the Borrowers shall deliver to the Collateral Agent a certificate
of a Financial Officer and the chief legal officer (or individual having the
analogous title) of each of the Borrowers (i) setting forth the information
required pursuant to Sections 1, 2, 7, 8, 12, 13, 14, 15, 16, 17 and 18 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Effective Date or the date of the most recent certificate delivered pursuant to
this Section and (ii) certifying that all UCC financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Security Documents for a period of not
less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period).
SECTION 5.08. Existence; Conduct of Business. Each Loan Party will,
do or cause to be done all things necessary to preserve, renew and keep in full
force and effect its and its Subsidiaries' (that are members of the Restricted
Group) legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.09. Performance of Obligations. Each Loan Party will and
will cause its Subsidiaries' (that are members of the Restricted Group) to
perform all of their respective obligations under the terms of each mortgage,
indenture, security agreement, other debt instrument and material contract by
which they are bound or to which they are a party except for such noncompliance
as in the aggregate would not have a Material Adverse Effect.
SECTION 5.10. Casualty and Condemnation. Each Loan Party (a) will
furnish to the Administrative Agent prompt written notice of any casualty or
other insured damage to any Collateral in an amount in excess of $2.0 million or
the commencement of any action or proceeding for the Taking of any Collateral or
any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding and (b) will ensure that the Net Proceeds of
any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with the applicable
provisions of this Agreement and the Security Documents.
SECTION 5.11. Pledge of Additional Collateral. (a) Within 30 days
after the acquisition of assets of the type that would have constituted
Collateral on the Effective Date pursuant to the Security Documents (the
"Additional Collateral"), each appropriate Loan Party will, and will cause its
respective Subsidiaries to, take all necessary action, including the filing of
appropriate financing statements under the provisions of the UCC, applicable
domestic or local laws, rules or regulations in each of the offices where such
filing is necessary or appropriate, or entering into or amending the Guarantee
Agree-
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ments and the Security Documents, or in the case of the Equity Interests of a
"first tier" Non-U.S. Subsidiary, entering into a pledge agreement under the
laws of the jurisdiction of such Non-U.S. Subsidiary providing for the relevant
Loan Party to have an enforceable and perfected security interest in 65% of the
Equity Interests in such Subsidiary, to grant to the Collateral Agent for its
benefit and the benefit of the Secured Parties a perfected first priority Lien,
subject to Permitted Liens in such Collateral pursuant to and to the full extent
required by the Security Documents and this Agreement (including, without
limitation, satisfaction of the conditions set forth in subsections (w) and (z)
of Section 4.01). In the event that any Loan Party (other than Homebase) or its
respective Subsidiaries acquire an interest in additional Real Property having a
fair market value in excess of $1.0 million as determined in good faith by the
Borrowers, acquire an interest in additional Real Property where equipment or
operations necessary or important to the operation of the Borrower's
communication network are located or renews any Real Property Lease (whether or
not the subject of a leasehold mortgage under the Security Documents), the
appropriate Loan Party, using its commercially reasonable efforts in the case of
any such leases, will take such actions and execute such documents as the
Collateral Agent shall require to confirm the Lien of a Mortgage, if applicable,
or to create a new Mortgage encumbering any such Real Property for the benefit
of the Secured Parties (including, without limitation, satisfaction of the
conditions set forth in subsections (f) and (x) of Section 4.01 and subsection
(a) of Section 5.19). All actions taken by the parties in connection with the
pledge of Additional Collateral, including, without limitation, costs of counsel
for the Administrative Agent and the Collateral Agent, shall be for the account
of the Borrowers, which shall pay all sums due on demand.
(b) Homebase and each member of the CCI Borrower Group agree to use
all reasonable efforts to, promptly following the Restatement Effective Date,
obtain the consent of the ICC to a guarantee by ICTC of, and a grant of a
security interest in ICTC's properties and assets to secure, $195.0 million of
the Obligations (which guarantee and security interest may be limited to the
extent required by Illinois law including ICC orders) and upon receiving the
required approval, to cause ICTC to enter into the ICTC Security and Guarantee
Agreement and to provide such officer's certificates and opinions of counsel to
ICTC as the Collateral Agent may reasonably request. The Loan Parties also agree
to submit any proposed modification to the Loan Documents on which the consent
of the ICC is conditioned to the Lenders in the form of a proposed amendment to
the Loan Documents (it being understood that the Lenders shall not be required
to consent to any such amendment).
SECTION 5.12. Further Assurances. (a) The Loan Parties will, and
will cause each Subsidiary of a Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents and the delivery
of appropriate opinions of counsel), which may be required under any applicable
law, or which the Administrative Agent or the Requisite Lenders may reasonably
request, to effectuate the transactions contemplated by the Loan Documents or to
grant, preserve, protect or perfect the Liens created by the Security Documents
or the validity or priority of any such Lien, all at the expense of the Loan
Parties. The Loan Parties also agree to provide to the Administrative Agent,
from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) In the event that Homebase forms an Intermediate Holdco for the
purpose of holding all of the Equity Interests of CCI Illinois Holdings and CCI
Texas Holdings, Homebase shall prior to contributing the Equity Interests of CCI
Illinois Holdings and CCI Texas Holdings to such Intermediate Holdco, enter into
a supplement to the Homebase Pledge and Guarantee Agreement, in form and
substance satisfactory to the Collateral Agent (and each Lender hereby
authorizes the Collateral Agent to enter into such supplement without further
consent of such Lender), pursuant to which the new Intermediate Holdco shall be
substituted for Homebase effective upon such transfer and Homebase shall be
re-
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leased from the Homebase Pledge and Guarantee Agreement effective upon such
transfer. In connection with such amendment, Homebase shall deliver to the
Collateral Agent stock powers duly endorsed in blank by such Intermediate
Holdco, together with such officer's certificates and opinions of counsel of
Homebase and such Intermediate Holdco as the Collateral Agent may request.
SECTION 5.13. Use of Proceeds. The Borrowers covenant and agree that
(i) the proceeds of the Term C Loans made on the Restatement Effective Date will
be used to repay all outstanding Term B Loans and (ii) all Revolving Credit
Borrowings after the Restatement Effective Date will be used for general
corporate purposes.
SECTION 5.14. Payment of Taxes. Each Loan Party and its respective
Subsidiaries will pay and discharge all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any Properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful claims which, if unpaid, might become a
Lien or charge upon any Properties of such Loan Party or any of its respective
Subsidiaries or cause a failure or forfeiture of title thereto; provided that
neither such Loan Party nor any of its respective Subsidiaries shall be required
to pay any such tax, assessment, charge, levy or claim that is being contested
in good faith and by proper proceedings diligently conducted, which proceedings
have the effect of preventing the forfeiture or sale of the Property or asset
that may become subject to such Lien, if it has maintained adequate reserves
with respect thereto in accordance with and to the extent required under GAAP;
provided, further, that, with respect to any taxes that are being contested, any
such contest of any tax, assessment, charge, levy or claim with respect to
Collateral shall satisfy the Contested Collateral Lien Conditions.
SECTION 5.15. Equal Security for Loans and Notes. If any Loan Party
(other than Homebase) shall create or assume any Lien upon any of its property
or assets, whether now owned or hereafter acquired, other than Permitted Liens
(unless prior written consent to the creation or assumption thereof shall have
been obtained from the Administrative Agent and the Requisite Lenders), it shall
make or cause to be made effective provisions whereby the Obligations will be
secured by such Lien equally and ratably with any and all other assets or
Property thereby secured as long as any such assets or Property shall be
secured; provided that this covenant shall not be construed as consent by the
Administrative Agent and the Requisite Lenders to any violation by any Loan
Party of the provisions of Section 6.02.
SECTION 5.16. Guarantees. In the event that any Person becomes a 90%
Owned Subsidiary after the Effective Date, the Borrowers will promptly notify
the Administrative Agent of that fact and cause such 90% Owned Subsidiary to
execute and deliver to the Administrative Agent a counterpart of the applicable
Guarantee Agreement and deliver to the Collateral Agent a counterpart of the
Security Agreement and the Pledge Agreement and to take all such further actions
and execute all such further documents and instruments (including actions,
documents and certificates comparable to those described in Section 4.01(w) as
may be necessary or, in the reasonable opinion of the Administrative Agent,
desirable to create in favor of the Collateral Agent, for the benefit itself and
of the Secured Parties, a valid and perfected first priority Lien on all of the
Property and assets of such 90% Owned Subsidiary described in the applicable
forms of the Security Documents.
SECTION 5.17. Subordination of Intercompany Loans. Each Loan Party
covenants and agrees that any existing and future debt obligation of any Loan
Party to any member of the Restricted Group that is not a Loan Party shall,
pursuant to a subordination agreement reasonably satisfactory to the
Administrative Agent, be expressly subordinated to the Loans following a Default
on terms customary for "seller paper."
SECTION 5.18. Hedging. Each Borrower will enter into interest rate
Hedging Agreements within 90 days of the Closing Date with respect to 50% of the
aggregate principal amount of
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outstanding Term A Loans and Term C Loans made to such Borrower on terms and
with counterparties satisfactory to the Administrative Agent and shall maintain
such Hedging Agreements until the date which is two years and six months after
the Effective Date.
SECTION 5.19. Certain Post-Closing Matters. (a) The applicable Loan
Parties shall deliver to the Collateral Agent (unless waived or extended by the
Collateral Agent in its sole discretion), within fifteen (15) days of the date
hereof for Mortgaged Property located in Texas, and, within seventy-five (75)
days of the date of receipt of approval from the ICC to encumber the Mortgaged
Property located in Illinois, the following:
(i) Mortgages encumbering each Mortgaged Property in which the
applicable Loan Party holds an ownership or leasehold interest (as
indicated on Schedule 5.19(a)(i) of the Original Credit Agreement) in
favor of the Collateral Agent, for its benefit and the benefit of the
Secured Parties, duly executed and acknowledged by the applicable Loan
Party, and otherwise in form for recording in the recording office where
each such Mortgaged Property is situated, together with such certificates,
affidavits, questionnaires or returns as shall be required in connection
with the recording or filing thereof to create a lien under applicable
law, and such UCC-1 financing statements and other similar statements as
are contemplated by the counsel opinions described in Section
5.19(a)(viii) in respect of such Mortgage, all of which shall be in form
and substance reasonably satisfactory to the Collateral Agent, and any
other instruments necessary to grant a mortgage lien under the laws of any
applicable jurisdiction, which Mortgage and financing statements and other
instruments shall when recorded be effective to create a Lien on such
Mortgaged Property subject to no other Liens except Prior Liens;
(ii) with respect to each Mortgaged Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination
agreements or other instruments, in form acceptable to the Collateral
Agent, as necessary or required to consummate the transactions
contemplated hereby or as shall reasonably be deemed necessary by the
Collateral Agent in order for the owner or holder of the fee or leasehold
interest constituting such Mortgaged Property to grant the Lien
contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy (or marked title
commitment having the effect of a title insurance policy) of title
insurance (collectively, a "Title Policy") insuring the Lien of such
Mortgage as a valid first mortgage Lien on the real property and fixtures
described therein in an amount not less than the amount set forth on
Schedule 5.19(a)(iii) of the Original Credit Agreement (115% of the fair
market value thereof), which Title Policy shall (w) be issued by the Title
Company, (x) include such reinsurance arrangements (with provisions for
direct access) as shall be reasonably acceptable to the Collateral Agent,
(y) contain a "tie-in" or "cluster" endorsement (if available under
applicable law) (i.e., policies which insure against losses regardless of
location or allocated value of the insured property up to a stated maximum
coverage amount) and have been supplemented by such endorsements (or where
such endorsements are not available, opinions of special counsel,
architects or other professionals reasonably acceptable to the Collateral
Agent to the extent that such opinions can be obtained at a cost which is
reasonable with respect to the value of the real property subject to such
Mortgage) as shall be reasonably requested by the Collateral Agent
(including, without limitation, endorsements, to the extent available in
each jurisdiction at commercially reasonably rates, on matters relating to
usury, first loss, last dollar, zoning, contiguity, variable rate,
revolving credit, doing business, access, survey, address, subdivision,
separate tax lot, lender non-imputation and so-called comprehensive
coverage over covenants and restrictions) and (z) contain only a survey
exception and such other exceptions to title as shall be agreed to by the
Collateral Agent with respect to such Mortgaged Property;
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(iv) with respect to each Mortgaged Property, policies or
certificates of insurance as required by the Mortgage relating thereto and
hereby, which policies or certificates shall comply with the insurance
requirements contained in such Mortgage and herein;
(v) with respect to each Mortgaged Property, such affidavits,
certificates, information (including financial data) and instruments of
indemnification (including, without limitation, a so-called "gap"
indemnification) as shall be required to induce the Title Company to issue
the Title Policy or Policies and endorsements contemplated in subparagraph
(iii) above;
(vi) evidence acceptable to the Collateral Agent of payment by the
appropriate Loan Party or Subsidiary thereof of all applicable title
insurance premiums, search and examination charges, survey costs and
related charges, mortgage recording taxes, fees, charges, costs and
expenses required for the recording of the Mortgages and issuance of the
title insurance policies referred to in subparagraph (iii) above;
(vii) with respect to each Real Property and Mortgaged Property,
copies of all leases or other agreements relating to possessory interests
to which any Loan Party or Subsidiary thereof is a party, it being
understood that to the extent any of the foregoing in which any Loan Party
is a landlord or sublandlord affect any Mortgaged Property, such leases or
other agreements shall be subordinate to the Mortgage to be recorded
against such Mortgaged Property and otherwise acceptable to the Collateral
Agent either by its terms or pursuant to a Subordination, non-disturbance
and attornment agreement (in form and substance satisfactory to the
Collateral Agent) to be executed by the tenant thereunder; and
(viii) opinions of the various local counsel to the Loan Parties as
specified in Schedule 4.01(f) of the Original Credit Agreement in form and
substance satisfactory to the Collateral Agent which opinions (x) shall be
addressed to each Agent and each of the Lenders and be dated the date of
delivery, (y) shall cover the enforceability of the respective Mortgage
delivered contemporaneously therewith and perfection of the Liens and
security interests granted pursuant thereto and the other relevant
Security Documents and such other matters incident to the transactions
contemplated herein as the Agents may reasonably request and (z) shall be
in form and substance reasonably satisfactory to the Agents.
(b) Insurance. The Collateral Agent shall have received a copy of,
or a certificate as to coverage under, the insurance policies required by
Section 5.04 and the applicable provisions of the Loan Documents, in form
and substance reasonably satisfactory to the Collateral Agent.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all Fees and other amounts payable hereunder or
under any other Loan Document have been paid in full and all Letters of Credit
have expired or terminated and all LC Disbursements shall have been reimbursed,
each of the Loan Parties agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The Loan
Parties will not, and will not permit any of their Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist (including by way of
Guarantee) any Indebtedness, except:
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(i) Indebtedness incurred and outstanding under the Loan
Documents;
(ii) (A) Indebtedness of Homebase, CCI Texas Holdings and CCI
Illinois Holdings incurred and outstanding under the Senior Notes in an
aggregate principal amount not to exceed $200.0 million and (B) any
Permitted Refinancing thereof; provided that in the case of clause (B)
only, (x) no Default shall have occurred or be continuing or would result
therefrom, (y) such Indebtedness matures at least one year after the Term
C Loan Maturity Date (and does not have mandatory offers to purchase,
repayments or sinking fund provisions less favorable to the Lenders than
the corresponding provisions of the Senior Note Documents) and (z) after
giving effect to the incurrence of such Indebtedness (and any other
Indebtedness incurred since the last day of the immediately preceding Test
Period) on a pro forma basis as if it were incurred on the first day of
the immediately preceding Test Period, the Borrowers would be in
compliance with the Financial Covenants;
(iii) Indebtedness to Remain Outstanding and any Permitted
Refinancing thereof;
(iv) Indebtedness (x) among the Borrowers, (y) of a Borrower to any
Subsidiary Loan Party and (z) of any Subsidiary Loan Party to a Borrower
or any other Subsidiary Loan Party; provided that such Indebtedness is
represented by a note and is pledged to the Collateral Agent pursuant to
the Security Documents);
(v) Guarantees by (x) a Borrower of Indebtedness of the other
Borrower, (y) a Borrower of Indebtedness of any Subsidiary Loan Party and
(z) any Subsidiary Loan Party of Indebtedness of the Borrowers or any
other Subsidiary Loan Party, in each case, to the extent such Indebtedness
would have been permitted to be incurred hereunder directly by such Loan
Party, and if such Indebtedness is subordinated in right of payment to the
Obligations under the Loan Documents, such Guarantee is as subordinated in
right of payment to the Obligations;
(vi) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn
against insufficient funds in the ordinary course of business; provided
that such Indebtedness is extinguished within two Business Days of such
Loan Party or such Subsidiary receiving notice thereof;
(vii) Indebtedness in an aggregate principal amount outstanding at
any time not in excess of $25.0 million of CCI Illinois Holdings, CCI
Texas Holdings, a Borrower or any Subsidiary Loan Party; provided that, in
each case, (x) no Default shall have occurred or be continuing or would
result therefrom and (y) after giving effect to the incurrence of such
Indebtedness on a pro forma basis, the Loan Parties would be in compliance
with the Financial Covenants;
(viii) Indebtedness of ICTC to a Borrower or any Subsidiary Loan
Party in an aggregate principal amount outstanding at any time not in
excess of $15.0 million; provided that if any such Indebtedness shall be
evidenced by a promissory note, such note shall be pledged pursuant to the
Pledge Agreement;
(ix) Indebtedness of a Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured
by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof or result in an earlier
maturity date or decreased Weighted Average Life to Maturity thereof;
provided that (A) such Indebtedness is incurred prior to or within 180
days after such acquisition or
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the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (ix) shall not
exceed $25.0 million at any time outstanding;
(x) Hedging Agreements entered into in the ordinary course of
business and not for speculative purposes;
(xi) Indebtedness owed to (including obligations in respect of
letters of credit for the benefit of) any Person providing worker's
compensation, health, disability or other employee benefits or property,
casualty or liability insurance to a Borrower or any Subsidiary, pursuant
to reimbursement or indemnification obligations to such Person;
(xii) Indebtedness of a Borrower or any Subsidiary in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade-related letters of credit, in each case provided in
the ordinary course of business, including those incurred to secure
health, safety and environmental obligations in the ordinary course of
business;
(xiii) Indebtedness arising from agreements of a Borrower or any
Subsidiary providing for indemnification, adjustment of purchase price or
similar obligations, in each case, incurred or assumed in connection with
the disposition of any business, assets or a Subsidiary, other than
Guarantees of Indebtedness incurred by any Person acquiring all or any
portion of such business, assets or a Subsidiary for the purpose of
financing such acquisition;
(xiv) obligations in respect of performance and surety bonds and
completion guarantees provided by a Borrower or any Subsidiary in the
ordinary course of business;
(xv) Indebtedness of Homebase incurred at any time that a Super
Holdco has not been formed which is not recourse to any assets of Homebase
other than Equity Interests held directly by it (other than any Equity
Interests of CCI Illinois Holdings or CCI Texas Holdings) and which is not
a general obligation of Homebase (and for which the holders of such
Indebtedness shall have acknowledged that they will have no claim against
the Equity Interests of CCI Illinois Holdings and CCI Texas Holdings or to
any other property of Homebase other than such pledged Equity Interests);
(xvi) obligations arising from or representing deferred compensation
to employees of a Borrower or any Subsidiary that constitute or are deemed
to be Indebtedness under GAAP and that are incurred in the ordinary course
of business;
(xvii) Indebtedness of a Person existing at the time such Person
becomes a Subsidiary of the Borrower in compliance with this Agreement,
but only if such Indebtedness could otherwise be incurred pursuant to
clauses (i) to (xvi) of this Section 6.01(a); provided that no Default
shall have occurred and be continuing or would result therefrom; and
(xviii) Indebtedness of the Loan Parties incurred or assumed in one
or more Permitted Acquisitions in an aggregate principal amount not to
exceed $25.0 million outstanding at any time.
(b) The Loan Parties will not, nor will they permit any of their
Subsidiaries to, directly or indirectly, issue any Preferred Stock or other
Equity Interest of such Person that by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable, in either
case at the option of the holder thereof) or otherwise (i) matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (ii)
is or may become redeemable or repurchaseable at the option of the
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holder thereof, in whole or in part, or (iii) is convertible or exchangeable at
the option of the holder thereof for Indebtedness or Equity Interests not
permitted by this Section 6.01(b), in each case, on or prior to the 91st day
after the Term Loan C Maturity Date; provided that Equity Interests of Homebase
as provided for on the Effective Date shall not be deemed to be prohibited by
this Section 6.01(b) so long as there is an effective Acknowledgment of
Limitation on Remedies in effect with respect to each of the Investor Members
(as defined in the Homebase LLC Agreement) or any other Person to the extent
such Person would have a right to require Homebase to repurchase or redeem such
Equity Interests.
SECTION 6.02. Liens. The Loan Parties will not, and will not permit
any of their Subsidiaries to, directly or indirectly, create, incur, assume or
permit to exist any Lien on any Property or asset now owned or hereafter
acquired by them, or assign or sell any income or revenues (including accounts
receivable) or rights in respect of any thereof, except the following (herein
collectively referred to as "Permitted Liens"):
(i) (x) Liens in favor of the Collateral Agent under the Security
Documents and (y) a second priority Lien in favor of the trustee for the
Senior Notes (and any Permitted Refinancing thereof in accordance with
Section 6.01(ii)) on the Equity Interests of CCI Texas Holdings and CCI
Illinois Holdings pursuant to the Homebase Pledge and Guarantee Agreement;
(ii) Liens on assets acquired after the Effective Date existing at
the time of acquisition thereof by a Borrower or any Subsidiary; provided
that such Liens were not incurred in connection with, or in contemplation
of, such acquisition and do not extend to any assets of the Borrowers or
any Subsidiary other than the specific assets so acquired;
(iii) Liens to secure the performance of statutory obligations,
surety or appeal bonds or performance bonds, landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's, attorney's or other
like liens, in any case incurred in the ordinary course of business and
with respect to amounts not overdue by more than 10 days or being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted; provided that (A) a reserve or other appropriate
provision, if any, as is required by GAAP shall have been made therefor,
(B) if such Lien is on Collateral and such amounts are being contested,
the Contested Collateral Lien Conditions shall at all times be satisfied
and (C) such Liens relating to statutory obligations, surety or appeal
bonds or performance bonds shall only extend to or cover cash and Cash
Equivalents not in the Collateral Account;
(iv) Liens existing on the Effective Date and identified on
Schedule 3.21(d) of the Original Credit Agreement;
(v) Liens for taxes, assessments or governmental charges or claims
or other like statutory Liens, in any case incurred in the ordinary course
of business, that do not secure Indebtedness for borrowed money and (A)
that are not yet delinquent or (B) that are being contested in good faith
by appropriate proceedings promptly instituted and diligently concluded;
provided that (1) any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made therefor and (2) if
such Lien is on Collateral and such amounts are being contested, the
Contested Collateral Lien Conditions shall at all times be satisfied;
(vi) Liens to secure Indebtedness (including Capital Lease
Obligations) of the type described in Section 6.01(a)(ix) covering only
the assets acquired, financed, refinanced or improved with such
Indebtedness;
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(vii) Liens on Equity Interests (other than any Equity Interests of
CCI Illinois Holdings or CCI Texas Holdings) held by Homebase securing
Indebtedness permitted by Section 6.01(a)(xv);
(viii) Liens securing Indebtedness incurred to refinance
Indebtedness secured by the Liens of the type described in clauses (i)(y),
(ii) and (vii) of this Section 6.02; provided that any such Lien shall not
extend to or cover any assets not securing the Indebtedness so refinanced;
(ix) (A) Liens in the form of zoning restrictions, easements,
licenses, reservations, covenants, conditions or other restrictions on the
use of real property or other minor irregularities in title (including
leasehold title) that do not (1) secure Indebtedness or (2) individually
or in the aggregate materially impair the value or marketability of the
real property affected thereby or the occupation, use and enjoyment in the
ordinary course of business of a Borrower or any Subsidiary at such real
property and (B) with respect to leasehold interests in real property,
mortgages, obligations, liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or under a landlord
or owner of such leased property encumbering the landlord's or owner's
interest in such leased property;
(x) Liens in the form of pledges or deposits securing bids,
tenders, contracts (other than contracts for the payment of money) or
leases to which either Borrower or any of their Subsidiaries is a party,
in each case, made in the ordinary course of business for amounts (A) not
yet due and payable or (B) being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted; provided that
(1) a reserve or other appropriate provision, if any, as is required by
GAAP shall have been made therefor, (2) if such Lien is on Collateral and
such amounts are being contested, the Contested Collateral Lien Conditions
shall at all times be satisfied and (3) such Liens shall in no event
encumber any Collateral other than cash and Cash Equivalents not in the
Collateral Account;
(xi) Liens resulting from operation of law with respect to any
judgments, awards or orders to the extent that such judgments, awards or
orders do not cause or constitute a Default under this Agreement; provided
that if any such Liens are on Collateral and such amounts are being
contested, the Contested Collateral Lien Conditions shall at all times be
satisfied;
(xii) Liens in the form of licenses, leases or subleases granted or
created by either Borrower or any of their Subsidiaries, which licenses,
leases or subleases do not interfere, individually or in the aggregate, in
any material respect with the business of such Borrower or such Subsidiary
or individually or in the aggregate materially impair the use (for its
intended purpose) or the value of the property subject thereto, provided
that (x) to the extent such licenses, leases or subleases relate to
Mortgaged Property in existence as of the Effective Date, such Borrower or
such Subsidiary shall use its commercially reasonable efforts to as soon
as practicable cause such licenses, leases or subleases to be subordinated
to the Lien granted and evidenced by the Security Documents in accordance
with the provisions thereof and (y) to the extent entered into after the
Effective Date, such licenses, leases or subleases shall be subordinate to
the Lien granted and evidenced by the Security Documents in accordance
with the provisions thereof; provided, further, that any such Lien shall
not extend to or cover any assets of any Person that is not the subject of
any such license, lease or sublease;
(xiii) Liens on fixtures or personal property held by or granted to
landlords pursuant to leases to the extent that such Liens are not yet due
and payable; provided that with respect to any leases entered into after
the Effective Date, the applicable Borrower or Subsidiary shall use its
commercially reasonable efforts to (x) enter into a lease that does not
▇▇▇▇▇ ▇ ▇▇▇▇ on fixtures or
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personal property in favor of the landlord thereunder or (y) obtain a
landlord lien waiver reasonably satisfactory to the Collateral Agent; and
(xiv) Liens securing Indebtedness permitted by Section
6.01(a)(xvii); provided that such Liens existed prior to such Person
becoming a Subsidiary, were not created in anticipation thereof and attach
only to specific assets of such Person that are being acquired;
provided, however, that no Liens shall be permitted to exist, directly or
indirectly, on any Securities Collateral (as defined in the Security Agreement)
other than Liens pursuant to clause (i) above.
SECTION 6.03. Fundamental Changes; Line of Business. (a) The Loan
Parties will not, and will not permit any of their Subsidiaries to, directly or
indirectly, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with them, or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing, (i) CCI Illinois Holdings and CCI
Texas Holdings may be merged together in a transaction in which either of them
is the surviving corporation, (ii) the Borrowers may be merged together in a
transaction in which either of them is the surviving corporation, (iii) any
wholly owned Subsidiary may merge into a Borrower in a transaction in which such
Borrower is the surviving corporation, (iv) any wholly owned Subsidiary may
merge with or into any wholly owned Subsidiary in a transaction in which the
surviving entity is a Subsidiary and (if any party to such merger is a
Subsidiary Loan Party, the surviving entity is a Subsidiary Loan Party) and (iv)
any Subsidiary may merge with or into an entity in a Permitted Acquisition in a
transaction in which the surviving entity is a Loan Party; provided that in
connection with the foregoing, the appropriate Loan Parties shall take all
actions necessary or reasonably requested by the Administrative Agent or the
Collateral Agent to expressly assume the obligations of each non-surviving
entity under each of the Loan Documents and to maintain the perfection of or
perfect, as the case may be, protect and preserve the Liens on the Collateral
granted to the Collateral Agent pursuant to the Security Documents and otherwise
comply with the provisions of Sections 5.11 and 5.12, in each case, on the terms
set forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, any Subsidiary may dispose of any
or all of its assets (upon voluntary liquidation or otherwise) to a Borrower or
Subsidiary Loan Party (provided that in connection with the foregoing, the
appropriate Loan Parties shall take all actions necessary or reasonably
requested by the Collateral Agent to maintain the perfection of or perfect, as
the case may be, protect and preserve the Liens on the Collateral granted to the
Collateral Agent pursuant to the Security Documents and otherwise comply with
the provisions of Sections 5.11 and 5.12, in each case, on the terms set forth
therein and to the extent applicable), and any Subsidiary which is not a
Subsidiary Loan Party may dispose of assets to any other Subsidiary which is not
a Subsidiary Loan Party.
(c) The Borrowers will not, and will not permit any of their
Subsidiaries to, directly or indirectly, engage in any business other than
businesses of the type conducted by the Borrowers and their Subsidiaries on the
Effective Date and businesses reasonably related thereto and other businesses
specified on Schedule 6.03(c) of the Original Credit Agreement.
(d) CCI Texas Holdings and CCI Illinois Holdings will not engage in
any business other than holding Equity Interests of the Borrowers, issuing the
Senior Notes (and any Permitted Refinancings thereof) or other Indebtedness
which they are permitted to incur pursuant to Section 6.01, maintaining their
existence and performing activities reasonably related thereto. For so long as
it is a Loan Party, Homebase shall not engage in any business other than (w)
holding Equity Interests of (i) CCI Texas Holdings and CCI Illinois Holdings and
(ii) other Persons that are corporations or limited liability companies or
Equity Interests of other Persons consisting of limited partnership interests in
limited partnerships, (x) incurring Indebtedness and pledging Equity Interests
held by it to the extent permitted by
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Section 6.01 and Section 6.02, (y) maintaining its existence and (z) activities
reasonably related to the foregoing clauses (w), (x) and (y).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Loan Parties will not, directly or indirectly, purchase, hold
or acquire (including pursuant to any merger with any Person that was not a
wholly owned Subsidiary prior to such merger) any Equity Interests in or
evidences of Indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or make up-front
payments or provide other credit support for any Person or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit (each of the foregoing, an "Investment" and
collectively, "Investments"), except:
(i) Permitted Investments;
(ii) Investments existing on the Effective Date (or in respect of
which a binding commitment to make such investment exists on the Effective
Date) and set forth on Schedule 6.04 of the Original Credit Agreement;
(iii) Investments by Loan Parties and their Subsidiaries in
Subsidiary Loan Parties or the Borrowers; provided that any such
Investment held by a Loan Party shall be pledged pursuant to a Pledge
Agreement;
(iv) Investments constituting Indebtedness permitted by Sections
6.01(a)(iv), (viii) and (x);
(v) Guarantees constituting Indebtedness permitted by Section
6.01(a)(v);
(vi) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(vii) loans and advances to employees of a Borrower or a Subsidiary
in the ordinary course of business (including, without limitation, for
travel, entertainment and relocation expenses) not to exceed $2.0 million
in the aggregate at any time outstanding;
(viii) other loans, advances and investments of the Borrowers or any
Subsidiary Loan Party not in excess of $10.0 million outstanding at any
time;
(ix) Investments made by Homebase at any time prior to the
formation of a Super Holdco, in the Equity Interests of other Persons that
are corporations or limited liability companies or Equity Interests of a
Person consisting of limited partnership interests in limited
partnerships;
(x) Investments received in connection with dispositions of assets
permitted under Section 6.05;
(xi) accounts receivable of a Loan Party established in the
ordinary course of business;
(xii) Investments out of Available Proceeds; and
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(xiii) Permitted Acquisitions.
SECTION 6.05. Asset Sales. The Loan Parties (other than Homebase)
will not, and will not permit any of their Subsidiaries to, directly or
indirectly, sell, transfer, lease or otherwise dispose of any asset, including
any Equity Interest owned by them, nor will any Borrower permit any of its
Subsidiaries to, directly or indirectly, issue any additional Equity Interest in
such Subsidiary, except:
(i) sales of inventory or used, surplus, obsolete, outdated,
inefficient or worn out equipment and other property in the ordinary
course of business;
(ii) sales, transfers and dispositions to the Borrowers or any
Subsidiary Loan Party; provided that in connection with the foregoing, the
appropriate Loan Parties shall take all actions necessary or reasonably
requested by the Collateral Agent to maintain the perfection of or
perfect, as the case may be, protect and preserve the Liens on the
Collateral granted to the Collateral Agent pursuant to the Security
Documents and otherwise comply with the provisions of Sections 5.11 and
5.12, in each case, on the terms set forth therein and to the extent
applicable;
(iii) the lease or sublease of Real Property in the ordinary course
of business and not constituting a sale and leaseback transaction;
(iv) sales of Permitted Investments on ordinary business terms;
(v) Liens permitted by Section 6.02 and Investments permitted
under Section 6.04;
(vi) sales of accounts receivable of a Loan Party that are past due
in the ordinary course of business;
(vii) licensing and cross-licensing arrangements involving any
technology or other intellectual property of a Loan Party or a Subsidiary
which does not materially restrict the ability of such Loan Party or
Subsidiary to use the technology or other intellectual property so
licensed;
(viii) sales, transfers and dispositions of assets (other than
Equity Interests of a Subsidiary) not otherwise permitted under this
Section; provided that the aggregate fair market value of all assets sold,
transferred or otherwise disposed of in reliance upon this clause (viii)
shall not, in the aggregate, exceed $10.0 million during any Fiscal Year
and $40.0 million in the aggregate and the Net Proceeds thereof are
applied as required by Section 2.05(c)(iii); and
(ix) Permitted Asset Swaps;
provided that all sales, transfers, leases and other dispositions permitted
hereby shall be made for fair value and (x) for at least 80% cash consideration
in the case of sales, transfers, leases and other dispositions permitted by
clauses (i) and (viii) and (y) for 100% cash consideration in the case of sales,
transfers, leases and other dispositions permitted by clauses (iv) and (vi).
SECTION 6.06. Sale and Leaseback Transactions. The Loan Parties
(other than Homebase) will not, and will not permit any of their Subsidiaries
to, directly or indirectly, enter into any arrangement, directly or indirectly,
whereby they shall sell or transfer any Property, real or personal, used or
useful in their business, whether now owned or hereafter acquired, and
thereafter rent or lease such Property or other Property that they intend to use
for substantially the same purpose or purposes as the Property sold or
transferred unless (i) the sale of such Property is permitted by Section 6.05
and (ii) any
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Lien arising in connection with the use of such Property by any Loan Party or a
Subsidiary is permitted by Section 6.02.
SECTION 6.07. Restricted Payments. The Loan Parties (other than
Homebase) will not, and will not permit any of their Subsidiaries to, directly
or indirectly, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, or incur any obligation (contingent or otherwise) to do
so, except:
(i) Subsidiaries of a Borrower may declare and pay dividends to
such Borrower or another Subsidiary ratably with respect to their Equity
Interests or additional shares of the same class of shares as the dividend
being paid to the extent such payment complies with Section 6.01(b);
(ii) the Borrowers may pay dividends consisting solely of shares of
their common stock or additional shares of the same class of shares as the
dividend being paid;
(iii) so long as no Default shall have occurred and is continuing or
would result therefrom, the Borrowers, CCI Illinois Holdings and CCI Texas
Holdings may make payments in an aggregate amount not to exceed $5.0
million during any Fiscal Year pursuant to the terms of the Professional
Services Fee Letters substantially contemporaneously with the date such
payments are due;
(iv) so long as no Default shall have occurred and is continuing or
would result therefrom, any Loan Party may purchase or redeem Equity
Interests of Homebase, a Super Holdco, a Loan Party or a Subsidiary
(including related stock appreciation rights or similar securities) held
by then present or former directors, consultants, officers or employees;
provided that the aggregate amount of such purchases or redemptions under
this clause (iv) shall not exceed in any Fiscal Year $3.0 million;
(v) noncash repurchases of Equity Interests deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options;
(vi) at any time when the Total Net Leverage Ratio is less than
3.5:1.0 and no Default has occurred and is continuing, payments of
dividends by the Borrowers, CCI Illinois Holdings and CCI Texas Holdings
in an aggregate principal amount not to exceed $5.0 million in any 12
month period;
(vii) unless a Default has occurred and is continuing under Section
7.01(a)(i) or any other Default has occurred within the previous 180 days
and is continuing, the Borrowers may declare and pay dividends or make
other distributions to CCI Texas Holdings or CCI Illinois Holdings in
amounts sufficient to permit CCI Texas Holdings or CCI Illinois Holdings
to pay regularly scheduled interest payments as and when due on the Senior
Notes;
(viii) unless a Default shall have occurred and is continuing or
would result therefrom, (x) the CCI Borrower and CCI Illinois Holdings may
declare and pay a dividend to Homebase or an Intermediate Holdco, provided
that an equal amount of cash equity is concurrently contributed to the
capital of the TXU Borrower by Homebase or such Intermediate Holdco and
(y) the TXU Borrower and CCI Texas Holdings may declare and pay dividends
to Homebase or an Intermediate Holdco; provided that an equal amount is
concurrently contributed to the capital of the CCI Borrower by Homebase or
such Intermediate Holdco;
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(ix) the Loan Parties in the CCI Texas Borrower Group may declare
and pay dividends or make other distributions in amounts sufficient to
permit CCI Texas Holdings to pay the taxes of the CCI Texas Borrower Group
or to the extent the amount so distributed is promptly applied to redeem
or repurchase Indebtedness of the type referred to in Section 6.01(a)(ii)
in a transaction permitted by Section 6.10(b)(iii);
(x) the Loan Parties in the CCI Illinois Borrower Group may
declare and pay dividends or make other distributions in amounts
sufficient to permit CCI Illinois Holdings to pay the taxes of the CCI
Illinois Borrower Group; and
(xi) the members of the Restricted Group may make distributions to
CCI Holdings Illinois, CCI Texas Holdings, any Intermediate Holdco and
Homebase to pay fees and expenses required to maintain their existence
(excluding any amounts attributable to any investment by Homebase or a
Super Holdco in a Person other than a Loan Party), (including franchise
taxes and federal, state, local and foreign income taxes computed as
though Homebase and any such Super Holdco did not own any investment in
any Person other than members of the Restricted Group), and bonus and
other benefits payable to their officers and employees, expenses of
members of the Board of Directors and other general corporate
administrative and overhead expenses actually incurred in respect of
maintaining their ownership interests in the Restricted Group in an amount
not to exceed (i) prior to a Public Equity Offering resulting in a Public
Market, $1.0 million in any Fiscal Year and (ii) following a Public Equity
Offering resulting in a Public Market, $2.0 million in any Fiscal Year.
SECTION 6.08. Transactions with Affiliates. The Loan Parties (other
than Homebase) will not, and will not permit any of their Subsidiaries to,
directly or indirectly, sell, lease or otherwise transfer any property or assets
to, or purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of their Affiliates
(including Homebase), unless such transactions are in the ordinary course of
such Loan Party's business and are at prices and on terms and conditions not
less favorable to the Loan Party or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, except:
(i) transactions between or among one or more of the Borrowers
and/or one or more of the Subsidiary Loan Parties not involving any other
Affiliate and transactions among Subsidiaries not involving any Loan
Party;
(ii) any Restricted Payment permitted by Section 6.07;
(iii) fees and compensation, benefits and incentive arrangements
paid or provided to, and any indemnity provided on behalf of, officers,
directors or employees of any member of the Restricted Group as determined
in good faith by the boards of directors of the Borrowers; and
(iv) loans and advances to employees of the Borrowers or any
Subsidiary Loan Party permitted by Section 6.04(viii);
(v) transactions pursuant to the agreements set forth on Schedule
6.08(v) of the Original Credit Agreement as such agreements are in effect
on the Effective Date and as amended in accordance with Section 6.10; and
(vi) in the case of any joint venture in which any member of the
Restricted Group has an interest, so long as the other party or parties to
the joint venture which are not Affiliates of any member of the Restricted
Group own at least 50% of the equity of such joint venture, transactions
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between such joint venture and members of the Restricted Group that are at
prices and on terms and conditions not less favorable to the Restricted
Group member than could be obtained on an arm's length basis from
unrelated third parties.
SECTION 6.09. Restrictive Agreements. The Loan Parties will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of any Loan Party (other than
Homebase) or any Subsidiary to create, incur or permit to exist any Lien upon
any of its Property or assets, or (b) the ability of any Subsidiary to pay
dividends or other distributions with respect to any of its Equity Interests or
to make or repay loans or advances to the Borrowers or any other Subsidiary or
to Guarantee Indebtedness of the Borrowers or any other Subsidiary or to
transfer property to the Borrowers or any of the Subsidiaries; provided that the
foregoing shall not apply to:
(i) conditions imposed by law (including orders of the ICC
or TPUC) or by any Loan Document;
(ii) clause (a) shall not apply to assets encumbered by
Permitted Liens as long as such restriction applies only to the asset
encumbered by such Permitted Lien;
(iii) restrictions and conditions existing on the Effective
Date not otherwise excepted from this Section 6.09 identified on Schedule
6.09 of the Original Credit Agreement (but shall not apply to any
amendment or modification expanding the scope of any such restriction or
condition);
(iv) restrictions contained in the Senior Note Documents or
any other agreements governing indebtedness so long as not more
restrictive than the Senior Notes Documents;
(v) any agreement in effect at the time any Person becomes a
Subsidiary of either Borrower; provided that such agreement was not
entered into in contemplation of such Person becoming a Subsidiary;
(vi) customary restrictions and conditions contained in
agreements relating to the sale of assets pending such sale; provided such
restrictions and conditions apply only to the assets to be sold and such
sale is permitted hereunder; and
(vii) clause (a) shall not apply to customary provisions in
leases and contracts in the ordinary course of business between the
Borrowers and their Subsidiaries and their customers and other contracts
restricting the assignment thereof.
SECTION 6.10. Amendments or Waivers of Certain Documents;
Prepayments of Certain Indebtedness. (a) The Loan Parties will not, and will not
permit any Subsidiary to, directly or indirectly, amend or otherwise change (or
waive) the terms of any Organic Document, any Transaction Document (other than
the Loan Documents), any document governing any Indebtedness outstanding as of
the Effective Date or any agreement set forth on Schedule 6.08(v) of the
Original Credit Agreement, in each case, in a manner materially adverse to the
Lenders.
(b) The Loan Parties will not, and will not permit any Subsidiary
to, make (or give any notice or offer in respect of) any voluntary or optional
payment or mandatory prepayment or redemption or acquisition for value of
(including, without limitation, by way of depositing with any trustee with
respect thereto money or securities before such Indebtedness is due for the
purpose of paying such Indebtedness when due) or exchange of principal of any
Indebtedness of the type referred to in Sec-
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tion 6.01(a)(ii), in each case other than (i) pursuant to any customary
registered exchange offer therefor after a private placement thereof, (ii) any
Permitted Refinancing and (iii) the repurchase or redemption from time to time
of up to $50.0 million aggregate principal amount, accrued interest on and
reasonable premium (as determined by the Borrowers) with respect to Indebtedness
of the type referred to in Section 6.01(a)(ii); provided that after giving
effect to any such repurchase or redemption (x) no Default exists, (y), the
Total Net Leverage Ratio is less than or equal to 4.25:1.00 and (z) the
Borrowers shall have available at least $30.0 million of any combination of (I)
unused and available Revolving Commitments and (II) unrestricted cash and Cash
Equivalents on hand in excess of $5.0 million.
SECTION 6.11. Interest Expense Coverage Ratio. The Borrowers will
not permit the Interest Expense Coverage Ratio for any Test Period ending on a
date set forth below to be less than the ratio set forth below opposite such
date:
Date Ratio
---- -----
June 30, 2004 2.0:1.0
September 30, 2004 2.0:1.0
December 31, 2004 2.0:1.0
March 31, 2005 2.0:1.0
June 30, 2005 2.0:1.0
September 30, 2005 2.0:1.0
December 31, 2005 2.0:1.0
March 31, 2006 2.0:1.0
June 30, 2006 2.0:1.0
September 30, 2006 2.0:1.0
December 31, 2006 2.0:1.0
March 31, 2007 2.0:1.0
June 30, 2007 2.0:1.0
September 30, 2007 2.0:1.0
December 31, 2007 2.0:1.0
March 31, 2008 2.0:1.0
June 30, 2008 2.0:1.0
September 30, 2008 2.0:1.0
December 31, 2008 2.0:1.0
March 31, 2009 2.0:1.0
June 30, 2009 2.0:1.0
September 30, 2009 2.0:1.0
December 31, 2009 2.0:1.0
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Date Ratio
---- -----
March 31, 2010 2.0:1.0
June 30, 2010 2.0:1.0
September 30, 2010 2.0:1.0
December 31, 2010 2.0:1.0
March 31, 2011 2.0:1.0
June 30, 2011 2.0:1.0
September 30, 2011 2.0:1.0
SECTION 6.12. Total Net Leverage Ratio. The Borrowers will not
permit the Total Net Leverage Ratio at any date set forth below to exceed the
ratio set forth opposite such date:
Date Ratio
---- -----
June 30, 2004 5.95:1.0
September 30, 2004 5.95:1.0
December 31, 2004 5.95:1.0
March 31, 2005 5.95:1.0
June 30, 2005 5.95:1.0
September 30, 2005 5.95:1.0
December 31, 2005 5.95:1.0
March 31, 2006 5.50:1.0
June 30, 2006 5.50:1.0
September 30, 2006 5.50:1.0
December 31, 2006 5.50:1.0
March 31, 2007 5.25:1.0
June 30, 2007 5.25:1.0
September 30, 2007 5.25:1.0
December 31, 2007 5.25:1.0
March 31, 2008 5.0:1.0
June 30, 2008 5.0:1.0
September 30, 2008 5.0:1.0
December 31, 2008 5.0:1.0
March 31, 2009 4.75:1.0
June 30, 2009 4.75:1.0
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Date Ratio
---- -----
September 30, 2009 4.75:1.0
December 31, 2009 4.75:1.0
March 31, 2010 4.50:1.0
June 30, 2010 4.50:1.0
September 30, 2010 4.50:1.0
December 31, 2010 4.50:1.0
March 31, 2011 4.50:1.0
June 30, 2011 4.50:1.0
September 30, 2011 4.50:1.0
SECTION 6.13. Capital Expenditures. The Borrowers will not, and will
not permit any of their Subsidiaries to, make or commit to make any Capital
Expenditures, except that the Borrowers and their Subsidiaries may make or
commit to make Capital Expenditures not exceeding the amount set forth below
(the "Base Amount") for each of the Fiscal Years of the Restricted Group set
forth below:
Fiscal Year Ended Base Amount
----------------- -----------
December 31, 2004 $ 40,000,000
December 31, 2005 $ 45,000,000
December 31, 2006 $ 45,000,000
December 31, 2007 $ 45,000,000
December 31, 2008 $ 45,000,000
December 31, 2009 $ 45,000,000
December 31, 2010 $ 45,000,000
December 31, 2011 $ 45,000,000
provided that for any period set forth above, the Base Amount set forth above
may be increased by a maximum of 100% of the Base Amount for any such period by
carrying over to any such period any portion of the Base Amount (without giving
effect to any increase) not spent in the immediately preceding period, and that
Capital Expenditures in any period shall be deemed first made from the Base
Amount applicable to such period in any given period; provided, further, that
(i) the Base Amount for any Fiscal Year shall be deemed to have been utilized
prior to the amount carried forward from the previous Fiscal Year and (ii) for
avoidance of doubt, Capital Expenditures for the Fiscal Year ended December 31,
2004 shall include Capital Expenditures made or committed to be made by members
of the Restricted Group prior to the Effective Date.
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SECTION 6.14. Senior Secured Leverage Ratio. The Borrowers will not
let the Senior Secured Leverage Ratio at any date set forth below exceed the
ratio set forth opposite such date.
Date Ratio
---- -----
June 30, 2004 4.20:1.0
September 30, 2004 4.20:1.0
December 31, 2004 4.20:1.0
March 31, 2005 4.20:1.0
June 30, 2005 4.20:1.0
September 30, 2005 4.20:1.0
December 31, 2005 4.20:1.0
March 31, 2006 3.25:1.0
June 30, 2006 3.25:1.0
September 30, 2006 3.25:1.0
December 31, 2006 3.25:1.0
March 31, 2007 3.0:1.0
June 30, 2007 3.0:1.0
September 30, 2007 3.0:1.0
December 31, 2007 3.0:1.0
March 31, 2008 2.75:1.0
June 30, 2008 2.75:1.0
September 30, 2008 2.75:1.0
December 31, 2008 2.75:1.0
March 31, 2009 2.50:1.0
June 30, 2009 2.50:1.0
September 30, 2009 2.50:1.0
December 31, 2009 2.50:1.0
March 31, 2010 2.25:1.0
June 30, 2010 2.25:1.0
September 30, 2010 2.25:1.0
December 31, 2010 2.25:1.0
March 31, 2011 2.25:1.0
June 30, 2011 2.25:1.0
September 30, 2011 2.25:1.0
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SECTION 6.15. Fixed Charge Coverage Ratio. The Borrowers will not
let the Fixed Charge Coverage Ratio at any date set forth below exceed the ratio
set forth opposite such date.
Date Ratio
---- -----
June 30, 2004 1.0:1.0
September 30, 2004 1.0:1.0
December 31, 2004 1.0:1.0
March 31, 2005 1.0:1.0
June 30, 2005 1.0:1.0
September 30, 2005 1.0:1.0
December 31, 2005 1.0:1.0
March 31, 2006 1.0:1.0
June 30, 2006 1.0:1.0
September 30, 2006 1.0:1.0
December 31, 2006 1.0:1.0
March 31, 2007 1.05:1.0
June 30, 2007 1.05:1.0
September 30, 2007 1.05:1.0
December 31, 2007 1.05:1.0
March 31, 2008 1.05:1.0
June 30, 2008 1.05:1.0
September 30, 2008 1.05:1.0
December 31, 2008 1.05:1.0
March 31, 2009 1.10:1.0
June 30, 2009 1.10:1.0
September 30, 2009 1.10:1.0
December 31, 2009 1.10:1.0
March 31, 2010 1.10:1.0
June 30, 2010 1.10:1.0
September 30, 2010 1.10:1.0
December 31, 2010 1.10:1.0
March 31, 2011 1.10:1.0
June 30, 2011 1.10:1.0
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Date Ratio
---- -----
September 30, 2011 1.10:1.0
December 31, 2011 1.10:1.0
SECTION 6.16. Anti-Terrorism Law. The Loan Parties shall not (i)
conduct any business or engage in making or receiving any contribution of funds,
goods or services to or for the benefit of any Person described in Section 3.23
above, (ii) deal in, or otherwise engage in any transaction relating to, any
property or interests in property blocked pursuant to the Executive Order or any
other Anti-Terrorism Law, or (iii) engage in or conspire to engage in any
transaction that evades or avoids, or has the purpose of evading or avoiding, or
attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law
(and the Loan Parties shall deliver to the Lenders any certification or other
evidence requested from time to time by any Lender in its reasonable discretion,
confirming the Loan Parties' compliance with this Section 6.16).
SECTION 6.17. Embargoed Person. At all times throughout the term of
the Loans, (a) none of the funds or assets of the Loan Parties that are used to
repay the Loans shall constitute property of, or shall be beneficially owned
directly or, to the knowledge of any Loan Party, indirectly by, any Person
subject to sanctions or trade restrictions under United States law ("Embargoed
Person" or "Embargoed Persons") that is identified on (1) the "List of Specially
Designated Nationals and Blocked Persons" (the "SDN List") maintained by the
Office of Foreign Assets Control (OFAC), U.S. Department of the Treasury, and/or
to the knowledge of any Loan Party, as of the date thereof, based upon
reasonable inquiry by such Loan Party, on any other similar list ("Other List")
maintained by OFAC pursuant to any authorizing statute including, but not
limited to, the International Emergency Economic Powers Act, 50 U.S.C.
SectionSection 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Order or regulation promulgated thereunder, with the
result that the investment in the Loan Parties (whether directly or indirectly)
is prohibited by law, or the Loans made by the Lenders would be in violation of
law, or (2) the Executive Order, any related enabling legislation or any other
similar Executive Orders (collectively, "Executive Orders"), and (b) no
Embargoed Person shall have any direct interest, and to the knowledge of any
Loan Party, as of the Effective Date, based upon reasonable inquiry by any Loan
Party, indirect interest, of any nature whatsoever in the Loan Parties, with the
result that the investment in the Loan Parties (whether directly or indirectly)
is prohibited by law or the Loans are in violation of law.
SECTION 6.18. Anti-Money Laundering. At all times throughout the
term of the Loans, to the knowledge of any Loan Party, as of the Effective Date,
based upon reasonable inquiry by such Loan Party, none of the funds of such Loan
Party that are used to repay the Loans shall be derived from any unlawful
activity with the result that the investment in the Loan Parties (whether
directly or indirectly), is prohibited by law or the Loans would be in violation
of law.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Listing of Events of Default. Each of the following
events or occurrences described in this Section 7.01 shall constitute (i) an
"Event of Default", if any Loans, LC Disbursements or Letters of Credit are
outstanding, and (ii) an "Event of Termination", if no Loans, LC Disbursements
or Letters of Credit are outstanding:
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(a) Either Borrower shall default (i) in the payment when due of any
principal of any Loan (including, without limitation, on any Installment
Payment Date) or any reimbursement obligation in respect of any LC
Disbursement, (ii) in the payment when due of any interest on any Loan
(and such default shall continue unremedied for a period of five Business
Days), or (iii) in the payment when due of any Fee described in Section
2.10 or of any other previously invoiced amount (other than an amount
described in clauses (i) and (ii)) payable under this Agreement or any
other Loan Document (and such default shall continue unremedied for a
period of five Business Days).
(b) Any representation or warranty of any Loan Party made or deemed
to be made hereunder or in any other Loan Document or any other writing or
certificate furnished by or on behalf of any Loan Party to the
Administrative Agent, the Issuing Bank or any Lender for the purposes of
or in connection with this Agreement or any such other Loan Document is or
shall be incorrect in any material respect when made or deemed made.
(c) Either Borrower shall default in the due performance and
observance of any of its obligations under clause (g), (i) or (k) of
Section 5.01 or any Loan Party or any of their Subsidiaries shall fail to
comply with clause (a) of Section 5.02 or Article VI, to the extent
applicable to such Person.
(d) Any Loan Party shall default in the due performance and
observance of any agreement (other than those specified in paragraphs (a)
through (c) above) contained herein or in any other Loan Document, and
such default shall continue unremedied for a period of 30 days after the
date of such default.
(e) A default shall occur (i) in the payment when due (subject to
any applicable grace period), whether by acceleration or otherwise, of any
Material Indebtedness or (ii) in the performance or observance of any
obligation or condition with respect to any Material Indebtedness if the
effect of such default referred to in this clause (ii) is to accelerate
the maturity of any such Material Indebtedness or that enables or permits
(with or without the giving of notice, the lapse of time or both) the
holder or holders of any such Material Indebtedness or any trustee or
agent on its or their behalf to cause any such Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity.
(f) Any judgment or order (or combination of judgments and orders)
for the payment of money equal to or in excess of $7.5 million
individually or in the aggregate shall be rendered against any member of
the Restricted Group (or any combination thereof) and
(i) enforcement proceedings shall have been commenced
by any creditor upon such judgment or order and not stayed;
(ii) such judgment has not been stayed, vacated or
discharged within 60 days of entry; or
(iii) there shall be any period (after any applicable
statutory grace period) of 10 consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect and such judgment is not
fully insured against by a policy or policies of insurance (with
reasonable or standard deductible provisions) issued by an insurer
other than an Affiliate of either Borrower.
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(g) Any of the following events shall occur:
(i)the taking of any specific actions by a Loan Party, any
ERISA Affiliate or any other Person to terminate a Pension Plan if,
as a result of such termination, a Loan Party or any ERISA Affiliate
could expect to incur a liability or obligation to such Pension Plan
which could reasonably be expected to have a Material Adverse
Effect; or
(ii) an ERISA Event, or termination, withdrawal or
noncompliance with applicable law or plan terms with respect to
Foreign Plans, shall have occurred that gives rise to a Lien on the
assets of any Loan Party or a Subsidiary or, when taken together
with all other ERISA Events and terminations, withdrawals and
noncompliance with respect to Foreign Plans that have occurred,
could reasonably be expected to have a Material Adverse Effect.
(h) Any Change in Control shall occur.
(i) Any Loan Party or any of their Subsidiaries shall
(i) become insolvent or generally fail to pay debts as
they become due;
(ii) apply for, consent to, or acquiesce in the appointment
of a trustee, receiver, sequestrator or other custodian for any Loan
Party or any of such Subsidiaries or substantially all of the
property of any thereof, or make a general assignment for the
benefit of creditors;
(iii) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for any Loan
Party or any of such Subsidiaries or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged or stayed within 60 days,
provided that each Loan Party and each such Subsidiary hereby
expressly authorizes the Administrative Agent and each Lender to
appear in any court conducting any relevant proceeding during such
60-day period to preserve, protect and defend their rights under the
Loan Documents;
(iv) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of any
Loan Party or any such Subsidiary and, if any such case or
proceeding is not commenced by the such Loan Party or such
Subsidiary, such case or proceeding shall be consented to or
acquiesced in by the such Loan Party or such Subsidiary or shall
result in the entry of an order for relief or shall remain for 60
days undismissed and unstayed; provided that each Loan Partier and
each such Subsidiary hereby expressly authorizes the Administrative
Agent and each Lender to appear in any court conducting any such
case or proceeding during such 60-day period to preserve, protect
and defend their rights under the Loan Documents; or
(v)take any corporate or partnership action (or comparable
action, in the case of any other form of legal entity) authorizing,
or in furtherance of, any of the foregoing.
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(j) The obligations of any Loan Party under the applicable Guarantee
Agreement shall cease to be in full force and effect or any such Loan
Party shall repudiate its obligations thereunder or the subordination
provisions of the Homebase Pledge and Guarantee Agreement shall cease to
be enforceable against the Second Priority Secured Parties (as defined in
the Homebase Pledge and Guarantee Agreement) or Homebase shall repudiate
the subordination provisions thereof.
(k) Any Lien on Collateral having a fair market value in excess of
$1.0 million purported to be created under any Security Document shall
fail or cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral, with the priority required by
the applicable Security Document.
(l) The subordination provisions relating to the Professional
Services Fee Subordination Agreement (the "Subordination Provisions")
shall fail in any material respect to be enforceable by the Lenders (which
have not effectively waived the benefits thereof) in accordance with the
terms thereof or Homebase shall, directly or indirectly, disavow or
contest in any manner any of the Subordination Provisions.
(m) Any Acknowledgment of Limitation on Remedies shall fail in any
material respect to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) or any party thereto shall,
directly or indirectly, disavow or contest the provisions thereof.
SECTION 7.02. Action if Bankruptcy. If any Event of Default
described in clauses (i) through (v) of Section 7.01(i) shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand, all of which are hereby waived by each Borrower.
SECTION 7.03. Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (i) through (v) of
Section 7.01(i)) shall occur for any reason, whether voluntary or involuntary,
and be continuing, the Administrative Agent, upon the direction of the Requisite
Lenders, shall by written notice to the Borrowers and each Lender declare all or
any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment
and/or, as the case may be, the Commitments shall terminate.
SECTION 7.04. Action if Event of Termination. Upon the occurrence
and continuation of any Event of Termination, the Requisite Lenders may, by
notice from the Administrative Agent to the Borrowers and the Lenders (except if
an Event of Termination described in clauses (i) through (v) of Section 7.01(i)
shall have occurred, in which case the Commitments (if not theretofore
terminated) shall, without notice of any kind, automatically terminate) declare
their Commitments terminated, and upon such declaration the Lenders shall have
no further obligation to make any Loans hereunder. Upon such termination of the
Commitments, all accrued fees and expenses shall be immediately due and payable.
SECTION 7.05. Borrowers' Right to Cure.
(a) Financial Performance Covenants. Notwithstanding anything to
the contrary contained in this Article VII, in the event that the Borrowers fail
to comply with the requirements of any Financial Covenant with respect to any
Test Period, until the expiration of the 10th day subsequent to the
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date the certificate calculating such Financial Covenant is required to be
delivered pursuant to Section 5.01(b) or (c), Homebase (or, in the event an
Intermediate Holdco has been formed, such Intermediate Holdco) shall have the
right to issue Permitted Cure Securities for cash or otherwise receive cash
contributions to its capital and, in each case, to contribute (through CCI
Illinois Holdings or CCI Texas Holdings) any such cash of up to $25.0 million
per exercise of the Cure Right to the capital of either of the Borrowers
(collectively, the "Cure Right"), and upon the receipt by a Borrower of such
cash (the "Cure Amount") pursuant to the exercise of such Cure Right such
Financial Covenant shall be recalculated giving effect to the following pro
forma adjustments:
(i) Consolidated EBITDA for the last Fiscal Quarter of such Test
Period shall be increased, solely for the purpose of measuring the
Financial Covenants for such Test Period and for each of the three
subsequent Test Periods in which such Fiscal Quarter is included (and not
for any other purpose under this Agreement), by an amount equal to the
Cure Amount; and
(ii) If, after giving effect to the foregoing recalculations, the
Borrowers shall then be in compliance with the requirements of all
Financial Covenants, the Borrowers shall be deemed to have satisfied the
requirements of the Financial Covenants as of the relevant date of
determination with the same effect as though there had been no failure to
comply therewith at such date, and the applicable Default of the Financial
Covenants which had occurred shall be deemed cured for all purposes of
this Agreement.
(b) Limitation on Exercise of Cure Right. Notwithstanding anything
herein to the contrary, in no event may the Cure Right be exercised if a period
of at least four consecutive Fiscal Quarters has not elapsed from the date of
the most recent exercise of the Cure Right.
ARTICLE VIII
THE AGENTS
SECTION 8.01. The Agents. Citicorp North America, Inc. is hereby
appointed to act as Administrative Agent and Collateral Agent on behalf of the
Lenders. Each of the Lenders and each assignee of any such Lender hereby
irrevocably authorizes each of the Agents to take such actions on behalf of such
Lender or assignee and to exercise such powers as are specifically delegated to
such Agent by the terms and provisions hereof and of the other Loan Documents,
together with such actions and powers as are reasonably incidental thereto. Each
Agent is hereby expressly authorized by the Lenders, without hereby limiting any
implied authority, (a) to receive on behalf of the Lenders all payments of
principal of and interest on the Loans, all payments and all other amounts due
to the Lenders hereunder, and promptly to distribute to each Lender its proper
share of each payment so received; (b) to give notice on behalf of each of the
Lenders to any of the Borrowers of any Default specified in this Agreement of
which such Agent has actual knowledge acquired in connection with its agency
hereunder; and (c) to distribute to each Lender copies of all notices, financial
statements and other materials delivered by the Borrowers pursuant to this
Agreement as received by such Agent.
None of the Agents nor any of their Related Parties shall be liable
to the Lenders as such for any action taken or omitted to be taken by any of
them except to the extent finally judicially determined to have resulted from
its or his or her own gross negligence or willful misconduct, or be responsible
for any statement, warranty or representation herein or the contents of any
document delivered in connection herewith, or be required to ascertain or to
make any inquiry concerning the performance or observance by any Loan Party of
any of the terms, conditions, covenants or agreements contained in any Loan
Document. The Agents shall not be responsible to the Lenders for the due
execution, genuineness, validity, enforceability or effectiveness of this
Agreement or any other Loan Documents or other instruments
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or agreements. Each Agent shall in all cases be fully protected in acting, or
refraining from acting, in accordance with written instructions signed by the
Requisite Lenders (or, when expressly required hereby, all the Lenders) and,
except as otherwise specifically provided herein, such instructions and any
action or inaction pursuant thereto shall be binding on all the Lenders. Each
Agent shall, in the absence of actual knowledge to the contrary, be entitled to
rely on any instrument or document believed by it in good faith to be genuine
and correct and to have been signed or sent by the proper person or persons.
None of the Agents nor any of their Related Parties shall have any
responsibility to the Loan Parties on account of the failure of or delay in
performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Loan Parties of any of their respective obligations
hereunder or under any other Loan Document or in connection herewith or
therewith. Each Agent may execute any and all duties hereunder by or through any
of its Related Parties or any sub-agent appointed by it and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all matters
arising hereunder and shall not be liable for any action taken or suffered in
good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that no Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of any Loan Document unless it shall be requested in writing to do so
by the Requisite Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, any Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrowers. Upon any such resignation, the Requisite Lenders
shall have the right to appoint a successor. If no successor shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a
successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500.0 million or an Affiliate
of any such bank. Upon the acceptance of any appointment as an Agent hereunder
by such a successor bank, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After an Agent's resignation hereunder, the provisions of this Article and
Section 9.05 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as an Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as an Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
such Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrowers or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon any Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
Notwithstanding anything to the contrary in this Agreement, neither
CSFB and DBTCA as Co-Syndication Agents, CSFB and CGMI, as Joint Lead Arrangers
and Joint Bookrunners, nor CoBank, as Documentation Agent, in such respective
capacities, shall have any obligations, duties or responsibilities, or shall
incur any liabilities, under this Agreement or any other Loan Document.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. (a) Except as set forth in Section 9.17,
notices and other communications provided for herein shall be in writing and
shall be delivered by hand or overnight courier service, mailed by certified or
registered mail, sent by telecopy or electronic mail, as follows:
(i) if to the TXU Borrower, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telecopy:
217-234-9934) (e-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), and if to
the CCI Borrower or any member of the CCI Illinois Borrower Group,
to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇ (telecopy: 217-234-9934) (e-mail:
▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), in each case, with copies to: (i)
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(telecopy: 217-234-9934) (e-mail:
▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ at ▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (telecopy: 217-234-9934)
(e-mail: ▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), (iii) Providence Equity, ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇ ▇▇▇▇▇
(telecopy: 401-751-1790) (e-mail: ▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇), (iv)
Spectrum Equity, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (telecopy:
617-464-4601) (e-mail: ▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇), (v) King & Spalding
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq. (telecopy: 212-556-2222) (e-mail:
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇), and (vi) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq. (telecopy:
617-439-4170) (e-mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇);
(ii) if to the Administrative Agent to it at Citicorp North
America, Inc., ▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇, attention:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail:
▇▇▇▇▇▇▇▇▇.▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇), with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Esq. (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇);
(iii) if to the Issuing Bank, to it at Credit Suisse First
Boston, acting through its ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇)
(email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇); and
(iv) if to a Lender, to it at its address (or telecopy number)
set forth in Schedule 2.01 or its Administrative Questionnaire or in the
Assignment and Acceptance pursuant to which such Lender shall have become
a party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy or electronic mail or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent
or mailed (properly addressed) to such party as provided in this Section 9.01 or
in accordance with the latest unrevoked direction from such party given in
accordance with this Section 9.01. Each Loan Party and Lender hereunder agrees
to notify the Administrative Agent in writing promptly of any change to the
notice information provided above or in Schedule 2.01.
(b) The Borrowers shall forthwith on demand indemnify each Lender
against any loss or liability which that Lender incurs (and that Lender shall
not be liable to either Borrower in any respect) as a consequence of:
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(i) any Person to whom any notice or communication under or in
connection with this Agreement is sent by either Borrower by telecopy
failing to receive that notice or communication (unless directly caused by
that Person's gross negligence or willful default); or
(ii) any telecopy communication which reasonably appears to that
Lender to have been sent by either Borrower having in fact been sent by a
Person other than the Borrowers.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Loan Parties herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by Lenders hereto and shall survive the making by the
Lenders of the Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
Fee or any other amount payable under this Agreement or any other Loan Document
is outstanding and unpaid or any Letter of Credit is outstanding and so long as
the Commitments have not been terminated. The provisions of Sections 2.14, 2.15,
2.16, 9.05 and 9.16 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.03. Binding Effect. Subject to Section 4.01, this
Agreement shall become effective when it shall have been executed by Homebase,
CCI Illinois Holdings, CCI Texas Holdings, each Borrower and the Administrative
Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the permitted successors and assigns of such party (including any
Affiliate of the Issuing Bank that issues any Letter of Credit). All covenants,
promises and agreements by or on behalf of either Borrower, the Agents or the
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns. Nothing in this Agreement, expressed
or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in clause (f) below and, solely to the extent expressly
contemplated hereby, the Related Parties of each of the Agents, the Issuing Bank
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it;
(provided that Loans to the TXU Borrower and the CCI Borrower may not be
assigned except in the same proportion as the total outstanding Loans of such
Class of the TXU Borrower bear to the total outstanding Loans of such Class of
the CCI Borrower); provided, further, however, that (i) except in the case of an
assignment to a Lender or a Lender Affiliate or a Federal Reserve Bank or in
connection with the initial syndication of the Commitments and Loans, the
Borrowers and the Administrative Agent (and, in the case of any assignment of a
Revolving Credit Commitment or any Lender's obligations in respect of its LC
Exposure or Swingline Exposure, the Issuing Bank and the Swingline Lender) must
give their prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to a
Lender or a Lender Affiliate or in
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connection with the initial syndication of the Commitments and Loans, the amount
of the Commitment or Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than, in the case of the Term A Loans and the Term C Loans, $1.0 million and
increments of $1.0 million in excess thereof and, in the case of the Revolving
Loans, $5.0 million and increments of $1.0 million in excess thereof (or (A) if
the aggregate amount of the Commitment or Loans of the assigning Lender is a
lesser amount, the entire amount of such Commitment or Loans, or (B) in any
other case, such lesser amount as the Borrowers and the Administrative Agent
otherwise agree), (iv) each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and obligations under
this Agreement, except that this clause (iv) shall not be construed to prohibit
the assignment of a proportionate part of all the assigning Lender's rights and
obligations in respect of one Class of Commitments and Loans, (v) except in the
case of the assignment to an Affiliate of such Lender or an assignment required
to be made pursuant to Section 2.20, the parties to each such assignment shall
execute and deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and (vi) the assignee,
if it shall not be a Lender or any, shall deliver to the Administrative Agent an
Administrative Questionnaire; provided, further, that any consent of the
Borrowers otherwise required under this paragraph shall not be required if a
Default has occurred and is continuing. Subject to acceptance and recording
pursuant to paragraph (e) of this Section 9.04, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five Business Days after the execution thereof (unless otherwise
determined by the Administrative Agent), (A) the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.15, 2.16 and 9.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment, as well as to any Fees accrued for its account and not yet
paid). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (f) of this Section.
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Commitment, and the outstanding balances of its Loans and participations in
Swingline Loans, in each case without giving effect to assignments thereof which
have not become effective, are as set forth in such Assignment and Acceptance,
(ii) except as set forth in (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition of
the Loan Parties or any of their Subsidiaries or the performance or observance
by the Loan Parties or any of their Subsidiaries of any of their obligations
under this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee represents and warrants
that it is legally authorized to enter into such Assignment and Acceptance; (iv)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the most recent financial statements, if any, delivered pursuant
to Section 5.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (v) such assignee will independently and without
reliance upon either Agent, such assigning Lender or any other Lender and based
on such documents and
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information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to such
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender; and (viii) Schedule
2.01 shall be deemed to be amended to reflect the assigning Lender thereunder
and the assignee thereunder after giving effect thereto. Each Lender that
delivers a Lender Addendum shall be deemed to have agreed with each of the other
parties hereto, to the same extent as though it were an assignee, to the matters
referred to in clauses (iii) through (viii) of the preceding sentence (with
references therein to "Assignment and Acceptance" referring to such Lender's
Lender Addendum).
(d) The Administrative Agent, acting for this purpose as an agent
of each Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements to each Borrower, and
participations in Swingline Loans, owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). Except to the extent inconsistent
with Section 2.07(d), the entries in the Register shall be conclusive and each
Borrower, the Agents, the Issuing Bank and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by any Borrower, the
Issuing Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the Borrowers, the Issuing
Bank, the Swingline Lender and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders. No assignment shall be effective unless it has
been recorded in the Register as provided in this paragraph (e).
(f) Each Lender may without the consent of either Borrower, the
Swingline Lender, the Issuing Bank or the Administrative Agent, sell
participations to any Person (other than a natural person or a Borrower or any
of a Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided, however, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) each Participant shall be entitled to the
benefit of the cost protection provisions contained in Sections 2.14, 2.15 and
2.16 and the provisions of Section 5.01 to the same extent as if they were
Lenders and had acquired its interest by assignment pursuant to paragraph (b) of
this Section 9.04 (provided that no participant shall be entitled to receive any
greater amount pursuant to such Sections than the Lender would have been
entitled to receive in respect of the interest transferred unless either (x)
such transfer to such Participant is made with the Borrowers' prior written
consent (not to be unreasonably withheld) or (y) a Default has occurred and is
continuing at the time of such participation), and (iv) the Borrowers, the
Agents, the Issuing Bank and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
(which each Lender agrees will not be limited by the terms of any participation
agreement or other agreement with a participant) to enforce the Loan Documents
and to approve any amendment, modification or waiver of any provision of the
Loan Documents (other than,
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without the consent of the Participant, amendments, modifications or waivers
described in the first proviso of Section 9.08(b) that affect such Participant).
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.06 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.20 as though it were a Lender.
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 9.04, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Borrowers and their Subsidiaries
furnished to such Lender by or on behalf of any of the Loan Parties; provided
that, prior to any such disclosure of information designated by either Borrower
as confidential, each such assignee or participant or proposed assignee or
participant shall execute a confidentiality agreement in form and substance
consistent with provisions of Section 9.16.
(h) Any Lender may at any time, without the consent of any Loan
Party or the Administrative Agent, pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank and this Section 9.04 shall not apply to any such pledge or
assignment of a security interest; provided that (x) no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto and (y) any foreclosure or similar action shall be subject to
the provisions of Section 9.04(b) concerning assignments and shall not be
effective to transfer any rights under this Agreement or in any Loan, Note or
other instrument evidencing the rights of a Lender under this Agreement until
the requirements of Section 9.04(b) concerning assignments are fully satisfied.
In order to facilitate such a pledge or assignment, each Borrower shall, at the
request of the assigning Lender, duly execute and deliver to the assigning
Lender a promissory note or notes evidencing the Loans made to such Borrower by
the assigning Lender hereunder.
(i) No Loan Party shall assign or delegate any of their rights or
duties hereunder without the prior written consent of the Administrative Agent
and each Lender, and any attempted assignment without such consent shall be null
and void.
SECTION 9.05. Expenses; Indemnity. (a) Each Borrower agrees to pay
(i) all reasonable out-of-pocket expenses incurred by the Administrative Agent,
the Collateral Agent, CGMI and their Affiliates, including the reasonable fees,
charges and disbursements of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement and the other Loan Documents or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the
transactions hereby contemplated shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred
by the Joint Lead Arrangers, the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender in connection with the enforcement or protection of
its rights in connection with this Agreement (including its rights under this
Section), the other Loan Documents or the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit, and, in connection with any such enforcement or protection, the fees,
charges and disbursements of any other counsel for the Administrative Agent, the
Collateral Agent, the Joint Lead Arrangers, the Issuing Bank or any Lender;
provided, however, that the Borrowers shall not be obligated to pay for expenses
incurred by a Lender in connection with the assignment of Loans to an assignee
Lender (except pursuant to Section 2.20) or the sale of Loans to a participant
pursuant to Section 9.04.
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(b) Each Borrower agrees to indemnify the Administrative Agent,
the Collateral Agent, the Co-Syndication Agents, the Documentation Agent, the
Joint Lead Arrangers, the Issuing Bank, each Lender, each Affiliate of any of
the foregoing Persons and each of their respective Related Parties (each such
Person being called an "Indemnitee") against, and to hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
reasonable expenses, including reasonable counsel fees, charges and
disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties hereto or thereto of their respective
obligations thereunder or the consummation of the Transactions and the other
transactions contemplated thereby, (ii) the use of the proceeds of the Loans or
Letters of Credit (including any refusal by the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any claim, litigation, investigation or proceeding relating to
any of the foregoing, whether or not any Indemnitee is a party thereto, or (iv)
any actual or alleged presence or Release of Hazardous Materials on any property
owned or operated by any Loan Party or any of the Subsidiaries, or any
Environmental Liability or Environmental Claim related in any way to any Loan
Party or the Subsidiaries; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related reasonable expenses are finally judicially determined to
have arisen by reason of the Indemnitee's gross negligence or willful
misconduct; provided, further, that such indemnity shall be without duplication
of amounts to which an Indemnitee is entitled under Section 2.16 and shall
exclude those amounts expressly excluded from indemnity or payment by either
Borrower in Section 2.16.
(c) To the extent that the Borrowers fail to promptly pay any
amount to be paid by it to any Agent, the Joint Lead Arrangers, the Issuing Bank
or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent, the Issuing Bank or the Swingline Lender,
as the case may be, such Lender's pro rata share (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount (other than syndication expenses); provided that, to the extent
any Issuing Bank or Swingline Lender is entitled to reimbursement under this
Section 9.05(c), to the extent the amounts reimbursed were incurred solely in
such Issuing Bank's or Swingline Lender's capacity as such, the indemnification
provided for in this Section 9.05(c) shall be solely the obligation of the
Revolving Lenders; provided, further, that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the applicable Agent, the Joint Lead
Arrangers, the Issuing Bank or the Swingline Lender in its capacity as such. For
purposes hereof, a Lender's "pro rata share" shall be determined based upon its
share of the sum of the total Revolving Credit Exposures, outstanding Term C
Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, no Borrower shall
assert, and each Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use
of the proceeds thereof.
(e) The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the invalidity
or unenforceability of any term or provision of this Agreement or any other Loan
Document, or any investigation made by or on behalf of the Administrative Agent
or any Lender. All amounts due under this Section 9.05 shall be payable on
written demand therefor.
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SECTION 9.06. Right of Setoff. If an Event of Default or Event of
Termination shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of any Loan Party
against any of and all the obligations of such Loan Party now or hereafter
existing under this Agreement and other Loan Documents held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or such other Loan Document and although such obligations may be
unmatured. In connection with exercising its rights pursuant to the previous
sentence, a Lender may at any time use any of the applicable Loan Party's credit
balances with the Lender to purchase at the Lender's applicable spot rate of
exchange any other currency or currencies which the Lender considers necessary
to reduce or discharge any amount due by such Loan Party to the Lender, and may
apply that currency or those currencies in or towards payment of those amounts.
The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have. Each
Lender agrees promptly to notify the applicable Loan Party and the
Administrative Agent after making any such setoff.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of either
Agent, the Issuing Bank or any Lender in exercising any power or right hereunder
or under any Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the
Borrowers therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any Default
or Event of Default regardless of whether an Agent, any Lender or the Issuing
Bank may have had notice or knowledge of such Default or Event of Default at the
time. No notice or demand on any Borrower in any case shall entitle such
Borrower to any other or further notice or demand in similar or other
circumstances.
(b) Subject to Sections 5.12(b), 6.03, 9.08(c), 9.08(d) and 9.08(e),
no amendment, modification, termination or waiver of any provision of any Loan
Document, or consent to any departure by any Loan Party therefrom, shall in any
event be effective without the written concurrence of the Requisite Lenders.
(c) Without the written consent of each Lender that would be
directly affected thereby (whose consent shall be sufficient therefor without
the consent of the Requisite Lenders), no amendment, modification, termination,
waiver or consent shall be effective if the effect thereof would:
(i) extend the scheduled final maturity of any Loan or Note;
(ii) waive, reduce or postpone any scheduled repayment (but not
prepayment);
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(iii) extend the stated expiration date of any Letter of Credit
beyond the Revolving Credit Maturity Date;
(iv) reduce or forgive the rate of interest on any Loan (other
than any waiver of any increase in the interest rate applicable to any
Loan pursuant to Section 2.18) or any fee payable hereunder, it being
understood that any amendment or modification to the financial definitions
in this Agreement shall not constitute a reduction in the rate of interest
for purposes of this clause (iv);
(v) extend the time for payment of any such interest or fees;
(vi) reduce or forgive the principal amount of any Loan or any
reimbursement obligation in respect of any Letter of Credit;
(vii) amend, modify, terminate or waive any provision of Section
9.08(b), this Section 9.08(c), Section 9.08(d) or Section 9.08(e) (except
for technical amendments with respect to additional extensions of credit
pursuant to this Agreement which affect the protections to such additional
extensions of credit of the type provided to the Revolving Credit
Commitments and the Term B Loans on the Effective Date);
(viii) amend the definition of "Requisite Lenders" or "Pro Rata
Percentage" or amend the provisions of Section 2.13(a) relating to pro
rata treatment of Lenders; provided, with the consent of Requisite
Lenders, additional extensions of credit pursuant hereto may be included
in the determination of "Requisite Lenders" or "Pro Rata Percentage" on
substantially the same basis as the Revolving Credit Commitments,
Revolving Loans, Term B Commitments and Term B Loans, are included on the
Effective Date;
(ix) release all or substantially all of the Collateral or
release any of the Guarantors from its Guarantee of the Obligations except
as expressly provided in the Loan Documents or subordinate the Liens under
any Security Document, it being understood that additional extensions of
credit under this Agreement consented to by the Requisite Lenders may be
equally and ratably secured by the Collateral with the then existing
secured obligations under the Security Documents;
(x) modify any provision of the Collateral Documents relating to
the application of proceeds from Collateral; or
(xi) consent to the assignment or transfer by any Loan Party of
any of its rights and obligations under any Loan Document (except as
contemplated by this Agreement).
(d) No amendment, modification, termination, waiver or consent with
respect to any provision of the Loan Documents, or consent to any departure by
any Loan Party therefrom, shall:
(i) increase any Revolving Credit Commitment of any Lender over
the amount thereof then in effect without the consent of such Lender;
provided no amendment, modification, termination, waiver or consent with
respect to any condition precedent, covenant, Default or Event of Default
shall be construed as an increase in the Revolving Credit Commitment of
any Lender;
(ii) amend, modify, terminate or waive any provision hereof
relating to the Swingline Sublimit or the Swingline Loans without the
consent of Swingline Lender;
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(iii) amend the definition of "Requisite Class Lenders" without
the consent of Requisite Class Lenders of each Class; provided, with the
consent of the Requisite Lenders, additional extensions of credit pursuant
hereto may be included in the determination of such "Requisite Class
Lenders" on substantially the same basis as the Revolving Credit
Commitments, Revolving Loans, Term B Commitments and Term B Loans are
included on the Effective Date;
(iv) alter the required application of any repayments or
prepayments as between Classes pursuant to Section 2.05 or Section 2.11
without the consent of Requisite Class Lenders of each Class which is
being allocated a lesser repayment or prepayment as a result thereof;
provided the Requisite Lenders may waive, in whole or in part, any
prepayment so long as the application, as between Classes, of any portion
of such prepayment is still required to be made is not altered and, if
additional extensions of term credit under this Agreement consented to by
the Requisite Lenders are made, such new term loans may be included on a
pro rata basis in the various prepayments required pursuant to Section
2.05;
(v) amend, modify, terminate or waive any obligation of Revolving
Lenders relating to the issuance of or purchase of participations in
Letters of Credit without the written consent of the Administrative Agent
and the Issuing Bank;
(vi) amend, modify, terminate or waive any provision of Section 8
as the same applies to any Agent, or any other provision hereof as the
same applies to the rights or obligations of any Agent, in each case
without the consent of such Agent;
(vii) amend, modify, terminate or waive any provision of any Loan
Document specifying the number or percentage of Lenders (or Lenders of any
Class) required to waive, amend or modify any rights thereunder or make
any determination to grant any consent thereunder without the written
consent of each Lender (or each Lender of such Class, as the case may be);
(viii) amend, modify, terminate or waive the manner of
application of any optional or mandatory prepayments of Loans to the
remaining amortization payments of the Term A Loans and the Term C Loans
without the written consent of the Requisite Class Lenders of each
affected Class of Loans;
(ix) expressly amend, modify, supplement or waive any condition
precedent in Section 4.02 to any Revolving Credit Borrowing without the
written consent of the Requisite Revolving Lenders; or
(x) increase the maximum duration of Interest Periods hereunder
without the consent of all Lenders.
(e) Without the written consent of Lenders holding 66 2/3% of the
outstanding Commitments, no amendment, modification, termination, waiver or
consent shall be effective if the effect thereof would be to waive any condition
set forth in Section 4.01.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively, the "Charges"), shall exceed
the maximum lawful rate (the "Maximum Rate") which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan or
participation in accordance with applicable law, the rate of interest payable in
respect of such Loan or participation hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the
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interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.10. Entire Agreement. This Agreement and the other Loan
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents; provided that any letter agreement relating to the subject matter
hereof between either Borrower and a Lender shall remain effective in accordance
with its terms. Nothing in this Agreement or in the other Loan Documents,
expressed or implied, is intended to confer upon any party other than the
parties hereto and thereto any rights, remedies, obligations or liabilities
under or by reason of this Agreement or the other Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
9.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a) Each
Loan Party hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permit-
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▇▇▇ by law, in such Federal court. Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Loan Party or its properties in the courts
of any jurisdiction.
(b) Each Loan Party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court referred to in paragraph (a) of
this Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.16. Confidentiality. (a) The Loan Parties, the Lenders,
the Administrative Agent and the Co-Syndication Agents hereby agree that each of
the Loan Parties, the Lenders, the Administrative Agent and the Co-Syndication
Agents and each of their respective officers, directors, employees, agents,
accountants, attorneys and other advisors are, and have been from the
commencement of discussions with respect to the facilities established by this
Agreement (the "Facilities"), permitted to disclose to any and all Persons,
without limitation of any kind, the structure and "tax aspects" (as such terms
are used in Code Sections 6011, 6111 and 6112 and the regulations promulgated
thereunder) of the Facilities, and all materials of any kind (including opinions
or other tax analyses) that are or have been provided to the Loan Parties, such
Lender, the Administrative Agent or the Co-Syndication Agents related to such
structure and tax aspects. In this regard, each of the Loan Parties, the
Lenders, the Administrative Agent and the Co-Syndication Agents acknowledges and
agrees that its disclosure of the structure or tax aspects of the Facilities is
not limited in any way by an express or implied understanding or agreement, oral
or written (whether or not such understanding or agreement is legally binding).
Furthermore, each of the Loan Parties, the Lenders, the Administrative Agent and
the Co-Syndication Agents acknowledges and agrees that it does not know or have
reason to know that its use or disclosure of information relating to the
structure or tax aspects of the Facilities is limited in any other manner (such
as where the Facilities are claimed to be proprietary or exclusive) for the
benefit of any other Person. To the extent that disclosure of the structure or
tax aspects of the Facilities by the Loan Parties, the Administrative Agent, the
Co-Syndication Agents or the Lenders is limited by any existing agreement
between the Loan Parties, the Administrative Agent, the Co-Syndication Agents or
the Lenders, such limitation is agreed to be void ab initio and such agreement
is hereby amended to permit disclosure of the structure and tax aspects of the
Facilities as provided in this paragraph (a).
(b) Subject to paragraph (a) of this Section 9.16, none of the
Administrative Agent, the Co-Syndication Agents or any Lender may disclose to
any Person any confidential, proprietary or non-public information of the Loan
Parties furnished to the Administrative Agent, the Co-Syndication Agents or the
Lenders by the Loan Parties (such information being referred to collectively
herein as the "Loan Party Information"), except that each of the Administrative
Agent, the Co-Syndication Agents and the Lenders may disclose Loan Party
Information (i) to its and its affiliates' employees, officers, directors,
agents, accountants, attorneys and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Loan Party Information and instructed to keep such Loan Party
Information confidential on substantially the same terms as provided herein),
(ii) to the extent requested by any regulatory authority, (iii) to the extent
required by applicable laws or
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regulations or by any subpoena or similar legal process, (iv) to any other party
to this Agreement, (v) in connection with the exercise of any remedies hereunder
or under any other Loan Document or any suit, action or proceeding relating to
this Agreement or any other Loan Document or the enforcement of rights hereunder
or thereunder, (vi) subject to an agreement containing provisions substantially
the same as those of this Section 9.16(b), to any assignee of or Participant in,
or any prospective assignee of or Participant in, any of its rights or
obligations under this Agreement, (vii) to the extent such Loan Party
Information (A) is or becomes generally available to the public on a
nonconfidential basis other than as a result of a breach of this Section 9.16(b)
by the Administrative Agent, the Co-Syndication Agents or such Lender, or (B) is
or becomes available to the Administrative Agent, the Co-Syndication Agents or
such Lender on a nonconfidential basis from a source other than the Loan Parties
and (viii) with the consent of the Loan Parties. Nothing in this provision shall
imply that any party has waived any privilege it may have with respect to advice
it has received.
SECTION 9.17. Citigroup Direct Website Communications. (a) Each Loan
Party hereby agrees that it will provide to the Administrative Agent all
information, documents and other materials that it is obligated to furnish to
the Administrative Agent pursuant to the Loan Documents, including, without
limitation, all notices, requests, financial statements, financial and other
reports, certificates and other information material, but excluding any such
communication that (i) relates to a request for a new, or a conversion of an
existing, Borrowing or other extension of credit (including any election of an
interest rate or interest period relating thereto), (ii) relates to the payment
of any principal or other amount due under this Agreement prior to the scheduled
date therefore, (iii) provides notice of any Default or Event of Default under
this Agreement or (iv) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other
extension of credit hereunder (all such non-excluded communications being
referred to herein collectively as "Communications"), by transmitting the
Communications in an electronic/soft medium in a format acceptable to the
Administrative Agent to ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇. In addition, each Loan
Party agrees to continue to provide the Communications to the Administrative
Agent in the manner specified in the Loan Documents but only to the extent
requested by the Administrative Agent.
(b) Each Loan Party further agrees that the Administrative Agent
may make the Communications available to the Lenders by posting the
Communications on Intralinks, Fixed Income Direct or a substantially similar
electronic transmission systems (the "Platform"). Each Loan Party acknowledges
that the distribution of material through an electronic medium is not
necessarily secure and that there are confidentiality and other risks associated
with such distribution.
(c) THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE". THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE
COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY
FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS,
IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE
AGENT PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT
SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES OR ANY OF THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS OR REPRESENTATIVES
(COLLECTIVELY, "AGENT PARTIES") HAVE ANY LIABILITY TO THE LOAN PARTIES, ANY
LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT
LIMITATION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF THE
LOAN PARTIES' OR THE ADMINISTRATIVE AGENT'S TRANSMISSION OF COMMUNICATIONS
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THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY AGENT PARTY IS
FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION
TO HAVE RESULTED PRIMARILY FROM SUCH AGENT PARTY'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT.
The Administrative Agent agrees that the receipt of the
Communications by the Agent at its e-mail address set forth above shall
constitute effective delivery of the Communications to the Administrative Agent
for purposes of the Loan Documents. Each Lender agrees that notice to it (as
provided in the next sentence) specifying that the Communications have been
posted to the Platform shall constitute effective delivery of the Communications
to such Lender for purposes of the Loan Documents. Each Lender agrees (i) to
notify the Administrative Agent in writing (including by electronic
communication) from time to time of such Lender's e-mail address to which the
foregoing notice may be sent by electronic transmission and (ii) that the
foregoing notice may be sent to such e-mail address.
Nothing herein shall prejudice the right of the Administrative Agent
or any Lender to give any notice or other communication pursuant to any Loan
Document in any other manner specified in such Loan Document.
SECTION 9.18. Collateral Agent as Joint Creditor. Each of the Loan
Parties and each of the Lenders agree that the Collateral Agent shall be the
joint creditor (together with the relevant Lender) of each and every obligation
of the Loan Parties towards each of the Lenders under or in connection with the
Loan Documents, and that accordingly the Collateral Agent will have its own
independent right to demand performance by the Loan Parties of those
obligations. However, any discharge of any such obligation to the Collateral
Agent or the relevant Lender shall, to the same extent, discharge the
corresponding obligation owing to the other.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CONSOLIDATED COMMUNICATIONS
ACQUISITION TEXAS, INC.,
as Co-Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
CONSOLIDATED COMMUNICATIONS, INC.,
as Co-Borrower
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
HOMEBASE ACQUISITION, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
CONSOLIDATED COMMUNICATIONS ILLINOIS
HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
CONSOLIDATED COMMUNICATIONS TEXAS
HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
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CITICORP NORTH AMERICA, INC.,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director
S-2