Exhibit 99.3
$156,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of October 29, 2002
Among
ITC/\ DELTACOM, INC.
as Parent
INTERSTATE FIBERNET, INC.
as Borrower
THE SUBSIDIARY GUARANTORS NAMED HEREIN
as Subsidiary Guarantors
THE LENDERS NAMED HEREIN
as Amendment Lenders
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
as Administrative Agent
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
as Collateral Agent
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS ............................. 2
SECTION 1.01. Certain Defined Terms ........................................ 2
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions ... 24
SECTION 1.03. Accounting Terms ............................................. 24
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES ............................ 24
SECTION 2.01. Restructuring ................................................ 24
SECTION 2.02. Intentionally Omitted ........................................ 25
SECTION 2.03. Repayment of Advances ........................................ 25
SECTION 2.04. Intentionally Omitted ........................................ 27
SECTION 2.05. Prepayments .................................................. 27
SECTION 2.06. Interest ..................................................... 28
SECTION 2.07. Fees ......................................................... 29
SECTION 2.08. Conversion of Advances ....................................... 29
SECTION 2.09. Increased Costs, Etc. ........................................ 30
SECTION 2.10. Payments and Computations .................................... 31
SECTION 2.11. Taxes ........................................................ 32
SECTION 2.12. Sharing of Payments, Etc. .................................... 34
SECTION 2.13. Use of Proceeds .............................................. 35
SECTION 2.14. Defaulting Lenders ........................................... 35
SECTION 2.15. Evidence of Debt; Register ................................... 37
ARTICLE III CONDITIONS OF LENDING ........................................ 38
SECTION 3.01. Conditions Precedent to the Amendment Effective Date ......... 38
ARTICLE IV REPRESENTATIONS AND WARRANTIES ............................... 42
SECTION 4.01. Representations and Warranties of the Borrower ............... 42
ARTICLE V COVENANTS OF THE PARENT ...................................... 49
SECTION 5.01. Affirmative Covenants ........................................ 49
SECTION 5.02. Negative Covenants ........................................... 55
SECTION 5.03. Reporting Requirements ....................................... 63
ARTICLE VI EVENTS OF DEFAULT ............................................ 67
SECTION 6.01. Events of Default ............................................ 67
ARTICLE VII GUARANTY ..................................................... 70
SECTION 7.01. Guaranty; Limitation of Liability ............................ 70
SECTION 7.02. Guaranty Absolute ............................................ 71
SECTION 7.03. Waivers and Acknowledgments .................................. 72
SECTION 7.04. Subrogation .................................................. 73
SECTION 7.05. Guaranty Supplements ......................................... 73
SECTION 7.06. Subordination ................................................ 73
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SECTION 7.07. Continuing Guaranty; Assignments ............................. 74
SECTION 7.08. Release of Guarantor ......................................... 75
ARTICLE VIII THE AGENT .................................................... 75
SECTION 8.01. Authorization and Action ..................................... 75
SECTION 8.02. Agents' Reliance, Etc. ....................................... 75
SECTION 8.03. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Affiliates ................................ 76
SECTION 8.04. Lender Party Credit Decision ................................. 76
SECTION 8.05. Indemnification .............................................. 76
SECTION 8.06. Successor Agents ............................................. 77
SECTION 8.07. Appointment of Subagents ..................................... 77
ARTICLE IX MISCELLANEOUS ................................................ 78
SECTION 9.01. Amendments, Etc. ............................................. 78
SECTION 9.02. Notices, Etc. ................................................ 78
SECTION 9.03. No Waiver; Remedies .......................................... 79
SECTION 9.04. Costs and Expenses ........................................... 79
SECTION 9.05. Right of Set-off ............................................. 80
SECTION 9.06. Binding Effect ............................................... 81
SECTION 9.07. Assignments and Participations ............................... 81
SECTION 9.08. Execution in Counterparts .................................... 83
SECTION 9.09. Confidentiality .............................................. 83
SECTION 9.10. Release of Collateral ........................................ 83
SECTION 9.11. Jurisdiction, Etc. ........................................... 83
SECTION 9.12. Governing Law ................................................ 84
SECTION 9.13. Waiver of Jury Trial ......................................... 84
SECTION 9.14. Waiver and Consent ........................................... 84
SECTION 9.15. Release of the Agent and the Lenders ......................... 84
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(p) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(r) - Open Years; Unpaid Tax Liabilities; Adjusted Tax Bases
Schedule 4.01(u) - Surviving Debt
Schedule 4.01(v) - Liens
Schedule 4.01(w) - Owned Real Property
Schedule 4.01(x) - Leased Real Property
Schedule 4.01(y) - Security Accounts and Deposit Accounts
Schedule 4.01(z) - Intellectual Property
Schedule 4.01(aa) - Material Contracts
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EXHIBITS
Exhibit A-1 - Form of ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Note
Exhibit A-2 - Form of ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Note
Exhibit B - Intentionally Omitted
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Intentionally Omitted
Exhibit F - Form of Solvency Certificate
Exhibit G - Form of Opinion of Counsel to the Loan Parties
Exhibit H - Intentionally Omitted
Exhibit I - Form of Guaranty Supplement
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AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 29,
2002, (this "Agreement") among ITC/\ DeltaCom, Inc., a Delaware corporation (the
"Parent"), Interstate FiberNet, Inc., a Delaware corporation (the "Borrower"),
the subsidiary guarantors listed on the signature page hereof, the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Amendment Lenders, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), as administrative agent (together with any successor
administrative agent appointed pursuant to Article VIII, the "Administrative
Agent") for the Lender Parties (as hereinafter defined), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, as collateral agent (together with any successor collateral
agent appointed pursuant to Article VIII, the "Collateral Agent" and, together
with the Administrative Agent, the "Agents").
RECITALS:
WHEREAS, pursuant to the Credit Agreement, dated as of April
5, 2000, as amended (the "Existing Credit Agreement"), the Lender Parties lent
to the Borrower $160,000,000 consisting of $100,000,000 under the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇
▇ Facility (as hereinafter defined) and $60,000,000 under the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇
Facility (as hereinafter defined) (the "Existing Loans") in order to finance (a)
working capital and certain capital expenditures (including the build-out of the
collocation and data services businesses) and other general corporate purposes
and (b) the purchase of equipment, respectively;
WHEREAS, on June 25, 2002, the Parent filed a voluntary
petition for bankruptcy relief under chapter 11 of title 11 of the United States
Code, as amended, with the United States Bankruptcy Court for the District of
Delaware;
WHEREAS, on October 17, 2002, the Bankruptcy Court confirmed
the Parent's Plan of Reorganization (as hereinafter defined) and a final order
confirming the Plan of Reorganization was entered by the Clerk of the Bankruptcy
Court;
WHEREAS, in connection with the consummation of the Plan of
Reorganization, the parties hereto desire that the aggregate principal amount of
the loans advanced to the Borrower by the Lenders pursuant to the Existing
Credit Agreement outstanding and all interest due thereon as of the Amendment
Effective Date (as hereinafter defined) shall be restructured, continued,
converted and consolidated, subject to the terms and conditions contained
herein; and
WHEREAS, it is the intention of the parties that this
Agreement not novate, extinguish or replace the indebtedness governed by the
Existing Credit Agreement, but that, from and after the Amendment Effective
Date, the Existing Credit Agreement shall be amended and restated in its
entirety in accordance with the terms and provisions hereof;
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree that as of the Amendment Effective Date,
the Existing Credit Agreement shall be amended and restated in its entirety as
follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Additional Facility" has the meaning specified in Section
5.02(a)(v).
"Additional Guarantor" has the meaning specified in Section
7.05.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent as the Administrative Agent shall specify in
writing to the Lender Parties.
"Advance" means a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advance or a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇
▇ Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Interests of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Interests, by contract or
otherwise.
"Agents" has the meaning specified in the recital of parties
to this Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date
of determination, an amount determined by the Administrative Agent
equal to: (a) in the case of a Hedge Agreement documented pursuant to
the Master Agreement (Multicurrency-Cross Border) published by the
International Swap and Derivatives Association, Inc. (the "Master
Agreement"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the
sole "Affected Party", and (iii) the Administrative Agent was the sole
party determining such payment amount (with the Administrative Agent
making such determination pursuant to the provisions of the form of
Master Agreement); or (b) in the case of a Hedge Agreement traded on an
exchange, the ▇▇▇▇-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of a Loan Party to such Hedge Agreement determined by the
Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination, or (c) in all other cases, the
▇▇▇▇-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the present
value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to
be received by such Loan
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Party or Subsidiary pursuant to such Hedge Agreement; capitalized
terms used and not otherwise defined in this definition shall have the
respective meanings set forth in the above described Master Agreement.
"Amendment Effective Date" means the first date on which the
conditions set forth in Section 3.01 shall have been satisfied.
"Amendment Lenders" means the Lenders signatory hereto.
"Applicable Base Rate Margin" means the Applicable Eurodollar
Rate Margin then in effect, less 1.00%.
"Applicable Eurodollar Rate Margin" means initially 4.00%,
subject to adjustment each fiscal quarter according to the following,
determined by the Senior Debt Ratio as measured on the last day of each
fiscal quarter for the period of the four consecutive fiscal quarters
then ended, commencing December 31, 2002, and as certified by the
Borrower to the Agents and the Lender Parties in the Financial
Covenants Certificate:
------------------- -----------------------------------
Senior Debt Ratio Applicable Eurodollar Rate Margin
------------------- -----------------------------------
greater
than 4.00x 5.25%
------------------- -----------------------------------
greater
than 3.50x 4.75%
------------------- -----------------------------------
greater
than 3.25x 4.25%
------------------- -----------------------------------
greater
than 3.00x 4.00%
------------------- -----------------------------------
greater
than 2.50x 3.75%
------------------- -----------------------------------
less
than 2.50x 3.50%
------------------- -----------------------------------
For purposes of computing the applicable Eurodollar Rate Margin, EBITDA
may be adjusted pursuant to Section 5.02(q)(ii)(B)(1).
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"Appropriate Lender" means, at any time, with respect to any
of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility or the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility a
Lender that has a Commitment with respect to such Facility at such
time.
"Approved Fund" means, with respect to any Lender that is a
fund that invests in bank loans, any other fund that invests in bank
loans and is advised or managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Bankruptcy Code" means title 11 of the United States Code, as
amended.
4
"Bankruptcy Court" means the United States Bankruptcy Court
for the District of Delaware.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate listed in the "Money Rates" section
of The Wall Street Journal as the "prime rate"; and
(b) 1/2 of 1% per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrowing" means a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Borrowing or a Tranche 2
Term B Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period,
the sum of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or
for replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as additions
to property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or Incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of
existing equipment or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment
for the equipment being traded in at such time or the amount of such
proceeds, as the case may be.
"Capital Lease Amendment" means the Amendment to the Schedules
and Leases, dated as of October 29, 2002, among NTFC, GECC, the
Borrower and ITC/\ DeltaCom Communications, Inc.
"Capital Lease Amendment Payments" means one or more payments
of any amount of the maximum aggregate payment of $6,000,000 referred
to in Section 1(a)(ii) of the Capital Lease Amendment.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) in equity of such Person,
whether outstanding on the date of this Agreement or issued thereafter,
including, without limitation, all Common Stock and Preferred Stock.
5
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than 360 days from the date of
issuance thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c) below, is organized under the laws of the United States or any
State thereof and has combined capital and surplus of at least $1
billion or (c) commercial paper in an aggregate amount of no more than
$160,000,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States
and rated at least "P-1" (or the then equivalent grade) by ▇▇▇▇▇'▇
Investors Service, Inc. or "A-1" (or the then equivalent grade) by
Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Change of Control" means the occurrence on any date after the
Amendment Effective Date of any of the following: (a) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended) becomes the "beneficial
owner" (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended), of
more than 35% of the total voting power of the Voting Stock of the
Parent on a Fully Diluted Basis and such ownership represents a greater
percentage of the total voting power of the Voting Stock of the Parent,
on a Fully Diluted Basis, than the percentage of the voting power of
the Voting Stock beneficially owned (within the meaning of Rule 13d-3
of the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended) by the Existing Stockholders on such date; or
(b) during any period of up to 24 consecutive months, commencing after
the Amendment Effective Date, individuals who at the beginning of such
24-month period were directors of the Parent or individuals whose
election or nomination as directors was approved by a majority of such
individuals shall cease for any reason to constitute a majority of the
board of directors of the Parent; or (c) the Parent shall cease to own
100% of the Equity Interests of the Borrower.
"Chapter 11 Case" means the proceedings under chapter 11 of
the Bankruptcy Code in In re ITC/\ DeltaCom, Inc. (Case No. 02-11848
(MFW)).
"Chief Financial Officer" means, with respect to any Loan
Party, the officer of such Loan Party designated by such Loan Party as
its chief financial officer or, if there is no such officer
designation, the officer of such Loan Party designated by such Loan
Party as its principal accounting officer.
6
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Collateral Agent for the benefit
of the Secured Parties.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Security Agreement, the
Mortgages and any other agreement that creates or purports to create a
Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Commitment" means a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Commitment or a Tranche
2 Term B Commitment.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's equity,
other than Preferred Stock of such Person, whether outstanding on the
date of this Agreement or issued thereafter, including, without
limitation, all series and classes of such common stock.
"Confidential Information" means information that any Loan
Party furnishes to any Agent or any Lender Party on a confidential
basis, but does not include any such information that is or becomes
generally available to the public or that is or becomes available to
such Agent or such Lender Party from a source other than the Loan
Parties which such Agent or such Lender Party do not have reason to
believe is confidential information.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c) any
Obligation of such Person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, assets, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of
such primary obligation against loss in respect thereof. The amount of
any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made (or, if less, the maximum
amount of
7
such primary obligation for which such Person may be liable pursuant to
the terms of the instrument evidencing such Contingent Obligation) or,
if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to
perform thereunder), as determined by such Person in good faith.
"Contingent Payments" means any one or more payments in an
aggregate amount not to exceed $19,600,000 made by a Loan Party upon
the occurrence of an "Event" as defined in, and pursuant to, Section
32.2 of the Amendment to the Revised and Restated Fiber Optic
Facilities and Services Agreement dated as of August 1, 2000 between
Southern Telecom, Inc. on behalf of itself and as agent for the other
parties named therein, and the Borrower.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"Conversion Shares" means the common stock or other securities
issued or issuable upon conversion of the Series A Preferred Stock.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year from such date), (b) all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after
such date and (c) all other items (including taxes accrued as
estimated) that in accordance with GAAP would be classified as current
liabilities of such Person.
"Debt" of any Person means, at any time without duplication,
(a) all indebtedness of such Person for borrowed money, (b) all
Obligations of such Person for the deferred purchase price of property
or services (other than trade payables not overdue by more than 60 days
incurred in the ordinary course of such Person's business), (c) all
Obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all Obligations of such Person created
or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such
property), (e) all Obligations of such Person as lessee under
Capitalized Leases, (f) all Obligations of such Person under
acceptance, letter of credit or similar facilities, (g) all Obligations
of such Person to Redeem any Equity Interests (other than
Reorganization Securities) in such Person or in any other Person, or to
Redeem options, warrants or other rights to purchase or otherwise
acquire such Equity Interests (other than Reorganization Securities),
before the date which is six months after the Termination Date
(provided, that if the exercise of the right to Redeem such Equity
Interests or options, warrants or other rights is at the option of such
Person under the terms of such Equity Interests or otherwise, the date
of such Person's exercise, if any, of such right to Redeem shall be the
date on which such
8
Person shall first be deemed to have an Obligation to Redeem such
Equity Interests or options, warrants or other rights for purposes of
this definition), valued in the case of Preferred Interests at the
stated liquidation preference of such Preferred Interests plus accrued
and unpaid dividends from time to time, (h) all Obligations of such
Person in respect of Hedge Agreements, valued at the Agreement Value
thereof, (i) all Contingent Obligations of such Person and (j) all
indebtedness and other payment Obligations referred to in clauses (a)
through (i) above of another Person secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such
indebtedness or other payment Obligations. Notwithstanding clause (g)
of this definition, the Obligations referred to in such clause (g) as
constituting "Debt" shall not include Obligations of such Person to
Redeem Equity Interests in such Person (or to Redeem options, warrants
or other rights to purchase or otherwise acquire such Equity
Interests) in exchange for, or out of the proceeds of a substantially
concurrent offering of, other Equity Interests (or options, warrants
or other rights to purchase or otherwise acquire such other Equity
Interests) in such Person, provided, that any Obligations of such
Person to Redeem such other Equity Interests (or to Redeem options,
warrants or other rights to purchase or acquire such other Equity
Interests) shall be subject to the provisions of such clause (g).
"Debt for Borrowed Money" of any Person means all items that,
in accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person.
"Debt Rating" has the meaning set forth in Section
5.01(n)(ii).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to any
Agent or any other Lender Party hereunder or under any other Loan
Document at or prior to such time that has not been so paid as of such
time, including, without limitation, any amount required to be paid by
such Lender Party to (a) the Administrative Agent pursuant to Section
2.02(a) to reimburse the Administrative Agent for the amount of any
Advance made by the Administrative Agent for the account of such Lender
Party, (b) any other Lender Party pursuant to Section 2.12 to purchase
any participation in Advances owing to such other Lender Party and (c)
any Agent pursuant to Section 8.05 to reimburse such Agent for such
Lender Party's ratable share of any amount required to be paid by the
Lender Parties to such Agent. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.14(b), the
remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Amount or (b) shall take any action
or be the subject of any action or proceeding of a type described in
Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section
3.01(f).
9
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of (a) net income (or net loss) after eliminating
extraordinary and/or non recurring items to the extent included in net
income (except as provided in this definition), (b) interest expense,
(c) income tax expense, (d) depreciation expense, (e) amortization
expense, (f) the aggregate of all non-cash charges deducted in arriving
at net income in clause (a) above, including, but not limited to, asset
impairment charges, (g) any restructuring charges that are recognized
and paid after August 31, 2002 within four months of the applicable
restructuring event, (h) each restructuring charge relating to any
merger or acquisition permitted under this Agreement that is recognized
and paid after the Amendment Effective Date within nine months of the
consummation of the applicable merger or acquisition, and which has a
benefit over a twelve-month period that exceeds such charge, and (i)
all restructuring charges incurred under or in connection with the Plan
of Reorganization, in each case of the Parent and its Subsidiaries,
determined in accordance with GAAP for such period (including, without
limitation, Emerging Issues Task Force Issue 94-3 and Statement of
Financial Accounting Standards No. 146).
"Eligible Assignee" means any commercial bank or financial
institution (including, without limitation, any fund that regularly
invests in loans similar to the Advances) as approved (so long as no
Default has occurred and is continuing at the time of the relevant
assignment pursuant to Section 9.07) by the Borrower (such approval not
to be unreasonably withheld or delayed); provided, however, that
neither any Loan Party nor any Affiliate of a Loan Party shall qualify
as an Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
10
"Equity Interests" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or warrants, rights or options for
the purchase or other acquisition from such Person of such shares (or
such other interests), and other ownership or profit interests in such
Person (including, without limitation, partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are
authorized or otherwise existing on any date of determination.
"Equity Plan Securities" means any Equity Interests awarded,
granted, sold or issued pursuant to any stock option, restricted stock,
stock incentive, deferred compensation, profit sharing, defined
benefit, defined contribution or other benefit plan of any Loan Party
or any Subsidiary of any Loan Party.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC or (ii) the requirements of Section 4043(b)
of ERISA apply with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA), excluding, however,
a "standard termination" as defined in Section 4041(a)(2) of ERISA; (d)
the cessation of operations at a facility of any Loan Party or any
ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any ERISA Affiliate from
a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the conditions for imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of
ERISA that constitutes grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
11
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in U.S. dollars
at 11:00 A.M. (London time) two Business Days before the first day of
such Interest Period for a period equal to such Interest Period
(provided that, if for any reason such rate is not available, the term
"Eurodollar Rate" shall mean, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, the
rate per annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates) by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period,
(a) the sum of:
(i) Consolidated net income (or loss) of
the Parent and its Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash
charges deducted in arriving at such Consolidated net
income (or loss) plus
12
(iii) if there was a net increase in
Consolidated Current Liabilities of the Parent and
its Subsidiaries during such period, the amount of
such net increase plus
(iv) if there was a net decrease in
Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Parent and its Subsidiaries
during such period, the amount of such net decrease
less
(b) the sum of:
(i) the aggregate amount of all non-cash
credits included in arriving at such Consolidated net
income (or loss) plus
(ii) if there was a net decrease in
Consolidated Current Liabilities of the Parent and
its Subsidiaries during such period, the amount of
such net decrease plus
(iii) if there was a net increase in
Consolidated Current Assets (excluding cash and Cash
Equivalents) of the Parent and its Subsidiaries
during such period, the amount of such net increase
plus
(iv) Capital Expenditures of the Parent
and its Subsidiaries during such period, provided,
however, that such Capital Expenditures are made in
the telecommunications industry or ancillary or
related industry plus
(v) the Capital Lease Amendment Payments
and all scheduled payments of principal (without
regard to any prepayments) outstanding under the GECC
Capital Lease and the NTFC Capital Lease plus
(vi) all payments made pursuant to
Sections 2.03(a), 2.03(b) and 2.05(a).
Notwithstanding anything contained in this Agreement to the contrary,
(i) any non-cash gain recognized in accordance with GAAP upon the
cancellation of indebtedness as a result of or in connection with
consummation of the transactions contemplated by the Plan of
Reorganization and (ii) any financial statement effect related to the
deposit of funds into, or the withdrawal of funds from, the segregated
account referred to in Section 5.01(n)(iv) shall be excluded from
Excess Cash Flow.
"Existing Credit Agreement" has the meaning set forth in the
recitals of parties to this Agreement.
"Existing Loans" has the meaning set forth in the recitals of
parties to this Agreement.
"Existing Stockholders" means ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III and
SCANA Corporation and their Affiliates, and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III's
spouse and any one or more of his lineal descendants and their spouses;
provided, however, that any such person other than ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
III shall only be deemed to be an "Existing Stockholder" to the extent
such person's Capital Stock of the Parent was received, directly or
indirectly, from ▇▇▇▇▇▇▇▇ B.
13
▇▇▇▇▇▇, III. For purposes of this definition, "Affiliate" means, as
applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control
with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any
Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by
contract or otherwise.
"Extraordinary Receipt" means any cash received by or paid to
or for the account of any Person not in the ordinary course of
business, including, without limitation, tax refunds, pension plan
reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in
lieu thereof), indemnity payments and any purchase price adjustment
received in connection with any purchase agreement; provided, however,
that an Extraordinary Receipt shall not include cash receipts, awards
or payments received from proceeds of insurance, condemnation awards
(or payments in lieu thereof) or indemnity payments to the extent that
such proceeds, awards or payments (A) are in respect of loss or damage
to equipment pledged as collateral to secure, or are otherwise properly
attributable to, either of the GECC Capital Lease or the NTFC Capital
Lease (and such cash receipts, awards or payments shall be held in a
segregated account in trust for the benefit of GECC and NTFC to be
remitted to GECC and NTFC in accordance with the GECC Capital Lease and
the NTFC Capital Lease), or (B) are in respect of loss or damage to
fixed assets, real property or equipment (other than equipment pledged
to secure either of the GECC Capital Lease or the NTFC Capital Lease)
and are applied to replace or repair such fixed assets, real property
or equipment in respect of which such proceeds, awards or payments were
received in accordance with the terms of the Loan Documents (or to
reimburse such Person for expenditures previously incurred on account
of such replacement or repair), provided that such proceeds, awards or
payments (y) are immediately deposited into an account held by the
Collateral Agent on behalf of the Lenders, and (z) are applied within
twelve months after the occurrence of such damage or loss, provided,
that the Borrower shall have delivered documentation reasonably
satisfactory to the Administrative Agent evidencing the cost and
proposed use of any equipment repaired or replaced pursuant thereto, or
(C) are received by any Person in respect of any third party claim
against such Person and applied to pay (or to reimburse such Person for
its prior payment of) such claim and the costs and expenses of such
Person with respect thereto, or (D) are received by any Person by way
of reimbursement or indemnification of such Person for costs and
expenses incurred by such Person. Any proceeds that are properly
attributable to the GECC Capital Lease or the NTFC Capital Lease shall
not constitute "Extraordinary Receipts."
"Facility" means the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility or the ▇▇▇▇▇▇▇
▇ ▇▇▇▇ ▇ Facility.
"FCC" means the Federal Communications Commission, or any
governmental agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so
14
published for any day that is a Business Day, the average of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Covenants Certificate" means the certificate delivered by the
Borrower pursuant to the requirements of Section 5.03(b)(iii) or Section
5.03(c)(iii), as applicable.
"Fiscal Year" means a Fiscal Year of the Parent and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Fully Diluted Basis" means as of the date of determination, the sum of (i)
the number of shares of Voting Stock outstanding as of such date of
determination plus (ii) the number of shares of Voting Stock issuable upon the
exercise, conversion or exchange of all then-outstanding warrants, options,
convertible Capital Stock or indebtedness, exchangeable Capital Stock or
indebtedness, or other rights exercisable for or convertible or exchangeable
into, directly or indirectly, shares of Voting Stock, whether at the time of
issue or upon the passage of time or upon the occurrence of some future event,
and whether or not in the money as of such date of determination.
"Funded Debt" of any Person means Debt of such Person that by its terms
matures more than one year after the date of its creation or matures within one
year from such date but is renewable or extendible, at the option of such
Person, to a date more than one year after such date or arises under a revolving
credit or similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year after such date, including, without
limitation, all amounts of Funded Debt of such Person required to be paid or
prepaid within one year after the date of its creation.
"GAAP" has the meaning specified in Section 1.03.
"GECC" means General Electric Capital Corporation.
"GECC Capital Lease" means the Master Lease Agreement, dated December 31,
2001, and the schedules and annexes thereto, as amended, between GECC and
ITC/\ DeltaCom Communications, Inc.
"Guaranteed Obligations" has the meaning specified in Section 7.01(a).
"Guaranties" means the Parent Guaranty and the Subsidiary Guaranties.
"Guarantors" means the Parent and the Subsidiary Guarantors.
"Guaranty Supplement" has the meaning specified in Section 7.05.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated as hazardous or
toxic or as a pollutant or contaminant under any Environmental Law.
15
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements, currency
future or option contracts and other hedging agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender Party in
its capacity as a party to a Secured Hedge Agreement.
"IFN" means Interstate FiberNet, Inc., the Borrower under this Agreement.
"Incur" means, with respect to any Debt, to incur, create, issue, assume,
guarantee or otherwise become liable for or with respect to, or become
responsible for, the payment of, contingently or otherwise, such Debt.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Insufficiency" means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interest Coverage Ratio" means, at any date of determination, the ratio of
(a) Consolidated EBITDA to (b) interest paid, in respect of, all Debt for
Borrowed Money, in each case, of or by the Parent and its Subsidiaries during
the two fiscal quarter periods ending on the last date of the most recently
ended fiscal quarter.
"Interest Period" means, for each Eurodollar Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such Eurodollar Rate
Advance or the date of the Conversion of any Base Rate Advance into such
Eurodollar Rate Advance, and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period
and ending on the last day of the period selected by the Borrower pursuant to
the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period with respect to
any Eurodollar Rate Advance under a Facility that ends after any principal
repayment installment date for such Facility unless, after giving effect to
such selection, the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on or prior to
such principal repayment installment date for such Facility shall be at
least equal to the aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar Rate
Advances comprising part of the same Borrowing shall be of the same
duration;
(c) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding Business Day, provided,
however, that, if such extension would cause the last day of such Interest
Period to occur in the next
16
following calendar month, the last day of such Interest Period shall occur
on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of the Security
Agreement.
"Investment" in any Person means any loan or advance to such Person, any
purchase or other acquisition of any Equity Interests or Debt or the assets
comprising a division or business unit or a substantial part or all of the
business of such Person, any capital contribution to such Person or any other
direct or indirect investment in such Person, including, without limitation, any
acquisition by way of a merger or consolidation and any arrangement pursuant to
which the investor Incurs Debt of the types referred to in clause (i) or (j) of
the definition of "Debt" in respect of such Person.
"Lender Party" means any Lender.
"Lenders" means the Amendment Lenders and each Person that shall become a
Lender hereunder pursuant to Section 9.07 for so long as such Amendment Lender
or Person, as the case may be, shall be a party to this Agreement.
"Lien" means any lien, security interest or other charge or encumbrance of
any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property, but
excluding any lien, security interest or other charge or encumbrance of any kind
or other type of preferential arrangement in respect of Ordinary Course
Obligations in an aggregate amount up to the sum of (x) $2,000,000, plus (y) if
the Borrower shall make one or more optional prepayments of Advances pursuant to
Section 2.05(a), the amount, up to $3,000,000, equal to the aggregate amount of
such optional prepayments, provided, that the maximum aggregate amount of the
Ordinary Course Obligations excluded from this definition shall not exceed
$5,000,000.
"Loan Documents" means (a) for purposes of this Agreement and the Notes and
any amendment, supplement or modification hereof or thereof, (i) this Agreement,
(ii) the Notes and (iii) the Collateral Documents and (b) for purposes of the
Collateral Documents and for all other purposes other than for purposes of this
Agreement and the Notes, (i) this Agreement, (ii) the Notes, (iii) the
Collateral Documents and (iv) each Secured Hedge Agreement.
"Loan Parties" means the Borrower and the Guarantors.
17
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Parent and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower and its Subsidiaries, taken as a whole,
(b) the rights and remedies of the Administrative Agent or any Lender Party
under any Loan Document or (c) the ability of any Loan Party to perform its
Obligations under any Loan Document to which it is or is to be a party.
"Material Contract" means, with respect to any Person, each contract to
which such Person is a party involving aggregate consideration payable to or by
such Person of $10,000,000 or more in any year or otherwise material to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of such Person.
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇" has the meaning specified in the recital of parties to
this Agreement.
"Mortgage Policies" has the meaning specified in Section 5.01(n)(i)(B).
"Mortgages" has the meaning specified in Section 5.01(n)(i).
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan
Party or any ERISA Affiliate and at least one Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which any
Loan Party or any ERISA Affiliate could have liability under Section 4064 or
4069 of ERISA in the event such plan has been or were to be terminated.
"Net Advance Payments" means prepayments of the purchase price or other
consideration, net of brokers' and finders' fees and commissions, reasonable
legal fees and other reasonable transaction costs.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer or
other disposition of any asset by any Person (excluding (A) Equity Interests,
(B) property properly attributable to the GECC Capital Lease or the NTFC Capital
Lease and (C) payments made pursuant to Section 1(a)(ii)(A) of the Capital Lease
Amendment), or any Extraordinary Receipt received by or paid to or for the
account of any Person, the aggregate amount of cash received from time to time
(whether as initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a) reasonable
and
18
customary brokerage commissions, underwriting fees and discounts, legal fees and
expenses, finder's fees and other similar fees and commissions and out-of-pocket
costs and expenses, and (b) the amount of taxes payable in connection with or as
a result of such transaction, in each case to the extent, but only to the
extent, that the amounts so deducted are, at the time of receipt of such cash,
actually paid to a Person that is not an Affiliate of such Person and are
properly attributable to such transaction or to the asset that is the subject
thereof; provided, however, that in the case of taxes that are deductible under
clause (b) above but for the fact that, at the time of receipt of such cash,
such taxes have not been actually paid or are not then payable, such Loan Party
or such Subsidiary may deduct an amount (the "Reserved Amount") equal to the
amount reserved in accordance with GAAP for such Loan Party's or such
Subsidiary's reasonable estimate of such taxes, other than taxes for which such
Loan Party or such Subsidiary is indemnified; provided further, however, that,
at the time such taxes are paid, an amount equal to the amount, if any, by which
the Reserved Amount for such taxes exceeds the amount of such taxes actually
paid shall constitute "Net Cash Proceeds" of the type for which such taxes were
reserved for all purposes hereunder; and provided further still, that Net Cash
Proceeds from (x) the sale, lease, transfer or other disposition of any asset or
(y) Extraordinary Receipts shall not include up to $500,000 of cash proceeds in
the aggregate received in connection with one or more such transactions or
receipts, as the case may be, to the extent such cash proceeds are applied to
replace the asset in respect of which such cash proceeds were received or are
otherwise invested in such Person's business, so long as application is made
within twelve months after the occurrence of such sale, lease, transfer or other
disposition or receipt, as the case may be.
"Nonratable Assignment" means an assignment by a Lender Party pursuant to
Section 9.07(a) of a portion of its rights and obligations under this Agreement,
other than an assignment of a uniform, and not a varying, percentage of all of
the rights and obligations of such Lender Party under and in respect of all of
the Facilities.
"Note" means a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Note or a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"NPL" means the National Priorities List under CERCLA.
"NTFC" means NTFC Capital Corporation.
"NTFC Capital Lease" means the Master Lease Agreement, dated December 29,
2000, and the schedules and annexes thereto, as amended, among NTFC, the
Borrower and ITC/\ DeltaCom Communications, Inc.
"Obligation" means, with respect to any Person, any payment, performance or
other obligation of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.01(f).
Without limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay principal,
interest, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by such Loan
19
Party under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender Party,
in its sole discretion, may elect to pay or advance on behalf of such Loan
Party.
"Open Year" has the meaning specified in Section 4.01(r)(iii).
"Ordinary Course Obligations" means obligations (exclusive of obligations
for the payment of borrowed money) under letters of credit, surety bonds,
pledges, deposits or other arrangements made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, government contracts, performance and
return-of-money bonds and other obligations of a similar nature incurred in the
ordinary course of business.
"Other Taxes" has the meaning specified in Section 2.11(b).
"Parent" has the meaning specified in the Preliminary Statements.
"Parent Guaranty" means the guaranty of the Parent set forth in Article
VII.
"PBGC" means the Pension Benefit Guaranty Corporation (or any successor).
"Permitted Encumbrances" has the meaning specified in the Mortgages.
"Permitted Liens" means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental charges or levies to the
extent not required to be paid under Section 5.01(b); (b) Liens imposed by law,
such as materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 30 days; (c) pledges
or deposits to secure obligations under workers' compensation laws or similar
legislation or to secure public or statutory obligations; and (d) Permitted
Encumbrances.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"PIK Dividends" means the shares of Series A Preferred Stock paid or
payable as dividends on outstanding shares of Series A Preferred Stock.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Plan of Reorganization" means the Plan of Reorganization of the Parent
under chapter 11 of the Bankruptcy Code in In re ITC/\ DeltaCom, Inc. (Case No.
02-11848 (MFW)).
"Pledged Debt" has the meaning specified in the Security Agreement.
"Pledged Shares" has the meaning specified in the Security Agreement.
20
"Post-Petition Interest" has the meaning specified in Section 7.06(b).
"Pre-Amendment Information" means all of the written information provided
by or on behalf of the Borrower to the Lenders prior to the date of the Term
Sheet, including, without limitation, any information contained in the document,
dated August 23, 2002, filed by the Parent with the Bankruptcy Court and titled
Debtor's First Amended Disclosure Statement Pursuant to Section 1125 of the
Bankruptcy Code, as Revised.
"Preferred Interests" means, with respect to any Person, Equity Interests
issued by such Person that are entitled to a preference or priority over any
other Equity Interests issued by such Person upon any distribution of such
Person's property and assets, whether by dividend or upon liquidation.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference equity, whether
outstanding on the date of this Agreement or issued thereafter, including,
without limitation, all series and classes of such preferred or preference
stock.
"PRI" means primary rate interface, a 1.544 mb/s information-carrying
channel that furnishes integrated services digital network services to end users
or wholesale customers.
"PUC" means any state regulatory agency or body that exercises jurisdiction
over the rates or services or the ownership, construction or operation of any
network facility or long distance telecommunications systems or over Persons who
own, construct or operate a network facility or long distance telecommunications
systems, in each case by reason of the nature or type of the business subject to
regulation and not pursuant to laws and regulations of general applicability to
Persons conducting business in such state.
"Redeem" means to purchase, redeem or otherwise retire or acquire for
value.
"Register" has the meaning specified in Section 2.15(b).
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Release Date" has the meaning specified in Section 5.01(n)(iv).
"Reorganization Common Stock" means the common stock of the Parent issued
or issuable under or in connection with the Plan of Reorganization, including,
without limitation, the Conversion Shares and the Warrant Shares.
"Reorganization Securities" means the Reorganization Common Stock, the
Series A Preferred Stock and the Warrants.
"Reorganization Transactions" means the transactions contemplated by the
Plan of Reorganization to occur on the effective date of the Plan of
Reorganization.
"Replaced Lender Party" has the meaning specified in Section 2.11(g).
21
"Replacement Effective Date" has the meaning specified in Section 2.11(g).
"Replacement Lender Party" has the meaning specified in Section 2.11(g).
"Required Lenders" means, at any time, Lenders owed or holding at least a
majority in interest of the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and (b) the aggregate unused Commitments under
the Facilities at such time; provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the determination
of Required Lenders at such time (A) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and outstanding at
such time and (B) the aggregate unused Commitments of such Lender at such time.
"Responsible Officer" means any officer of any Loan Party or any of its
Subsidiaries.
"Secured Hedge Agreement" means any Hedge Agreement required or permitted
under Article V that is entered into by and between the Borrower and any Hedge
Bank.
"Secured Obligations" has the meaning specified in the Security Agreement.
"Secured Parties" means the Agents, the Lender Parties and the Hedge Banks.
"Security Agreement" has the meaning specified in Section 3.01(b)(ii).
"Senior Debt" means, for any period, all Debt of the Borrower and its
Subsidiaries secured by a first priority Lien on real or personal property of
the Borrower or its Subsidiaries, but excluding any Debt or other obligations
owing to Southern Telecom, Inc., provided, that Capitalized Lease payments owing
to Southern Telecom, Inc. for any Fiscal Year are less than $1,500,000.
"Senior Debt Ratio" means, in respect of any specified period, the ratio of
(a) Senior Debt for such period to (b) EBITDA for such period.
"Series A Certificate of Designation" means the Parent's Certificate of
Designation of the Powers, Preferences and Relative, Participating, Optional and
other Special Rights of 8% Series A Convertible Redeemable Preferred Stock and
Qualifications, Limitations and Restrictions thereof, as in effect from time to
time.
"Series A Preferred Stock" means the shares of preferred stock of the
Parent designated as the 8% Series A Convertible Redeemable Preferred Stock and
issued pursuant to the Series A Certificate of Designation on the effective date
of the Plan of Reorganization or as PIK Dividends.
"Single Employer Plan" means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or
any ERISA Affiliate and no Person other than the Loan Parties and the ERISA
Affiliates or (b) was so maintained and in respect of which any Loan Party or
any ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
22
"Solvent" and "Solvency" mean, with respect to any Person on a particular
date, that on such date (a) the fair value of the property of such Person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay such debts
and liabilities as they mature and (d) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
"Subordinated Debt" means Debt that, by the terms of any agreement or
instrument pursuant to which such Debt is Incurred, is expressly made
subordinate in right of payment and priority to the Loans.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and 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), (b) the interest in the capital or profits of such partnership,
joint venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its other Subsidiaries or by
one or more of such Person's other Subsidiaries.
"Subsidiary Guarantors" means the Subsidiaries of the Borrower listed on
Schedule II hereto and each other Subsidiary of the Borrower that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j).
"Subsidiary Guaranty" means the guaranty of the Subsidiary Guarantors set
forth in Article VII.
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately after giving effect to the consummation of the
Reorganization Transactions.
"Tax Certificate" has the meaning specified in Section 5.03(k).
"Taxes" has the meaning specified in Section 2.11(a).
"Term Sheet" means the Term Sheet, dated August 22, 2002, setting forth the
proposed material terms and conditions of this Agreement.
"Termination Date" means the earlier of (a) the date of termination in
whole of the Commitments pursuant to Section 6.01 and (b) June 30, 2006.
23
"Tranche 1 Term B Advance" means the single advance that was made by each
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lender, according to such Lender's ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Commitment,
upon the closing of the Existing Credit Agreement.
"Tranche 1 Term B Borrowing" means a borrowing consisting of simultaneous
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances of the same Type made by the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lenders.
"Tranche 1 Term B Commitment" means, with respect to any ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇
Lender at any time, the amount set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 2.15(b) as such
Lender's "Tranche 1 Term B Commitment."
"Tranche 1 Term B Facility" means, at any time, the aggregate amount of the
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lenders' ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Commitments at such time.
"Tranche 1 Term B Lender" means any Lender that has a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇
Commitment.
"Tranche 1 Term B Note" means an amended and restated promissory note of
the Borrower payable to the order of any ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lender, in
substantially the form of Exhibit A-1 hereto, evidencing the indebtedness of the
Borrower to such Lender resulting from the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advance made by such
Lender, as amended.
"Tranche 2 Term B Advance" means the single advance that was made by each
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lender, according to such Lender's ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Commitment,
upon the closing of the Existing Credit Agreement.
"Tranche 2 Term B Borrowing" means a borrowing consisting of simultaneous
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances of the same Type made by the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lenders.
"Tranche 2 Term B Commitment" means, with respect to any ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇
Lender at any time, the amount set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 2.15(b) as such
Lender's "Tranche 2 Term B Commitment."
"Tranche 2 Term B Facility" means, at any time, the aggregate amount of the
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lenders' ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Commitments at such time.
"Tranche 2 Term B Lender" means any Lender that has a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇
Commitment.
"Tranche 2 Term B Note" means an amended and restated promissory note of
any Borrower payable to the order of any ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the indebtedness of
such Borrower to such Lender resulting from the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advance made by
such Lender, as amended.
"Transactions" means the transactions contemplated by the Loan Documents.
"Type" refers to the distinction between Advances bearing interest at the
Base Rate and Advances bearing interest at the Eurodollar Rate.
24
"Unencumbered Parcel" means any parcel of real property owned by the Parent
or its Subsidiaries that was not previously pledged as Collateral under the
Existing Credit Agreement.
"Voting Interests" means shares of capital stock issued by a corporation,
or equivalent Equity Interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Warrant Shares" means the common stock or other securities issued or
issuable upon exercise of the Warrants.
"Warrants" means the common stock purchase warrants issued by the Parent on
the date of the initial issuance of the Series A Preferred Stock and any
warrants issued in exchange or substitution therefor or upon exercise thereof in
accordance with the warrant agreement pursuant to which such common stock
purchase warrants were issued.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of ERISA,
that is maintained for employees of any Loan Party or in respect of which any
Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.
In this Agreement and the other Loan Documents in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein, unless otherwise specified herein, shall be construed in
accordance with generally accepted accounting principles in the United States of
America as in effect from time to time and consistent with those applied in the
preparation of the financial statements of the Parent and its Subsidiaries.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. Restructuring. Subject to the terms and conditions hereof,
including without limitation, Section 3.01, the parties hereto agree to, and
hereby, restructure, continue, convert and consolidate the Existing Loans.
Notwithstanding anything to the contrary contained in this
25
Agreement, the parties understand and agree that, as a result of the
restructuring, continuation, conversion and consolidation contemplated hereby,
the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility and the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility are fully funded
and no additional funding of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility or the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇
▇ Facility shall be made hereunder. As of the Amendment Effective Date, the
principal amount outstanding of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility is $97,500,000,
excluding accrued and unpaid interest, and the principal amount outstanding of
the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Facility is $58,500,000, excluding accrued and unpaid
interest. These amounts represent valid and binding claims enforceable against
the Borrower in accordance with the terms of the Loan Documents.
SECTION 2.02. Intentionally Omitted.
SECTION 2.03. Repayment of Advances. (a) Tranche 1 Term B Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lenders the aggregate outstanding principal amount of the
▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances on the following dates in the amounts indicated (which
amount shall be reduced as a result of the application of prepayments in
accordance with Section 2.05).
----------------------- ---------------------
Date Amount
----------------------- ---------------------
December 31, 2002 $ 250,000
----------------------- ---------------------
March 31, 2003 $ 250,000
----------------------- ---------------------
June 30, 2003 $ 250,000
----------------------- ---------------------
September 30, 2003 $ 250,000
----------------------- ---------------------
December 31, 2003 $ 250,000
----------------------- ---------------------
March 31, 2004 $ 250,000
----------------------- ---------------------
June 30, 2004 $ 250,000
----------------------- ---------------------
September 30, 2004 $ 250,000
----------------------- ---------------------
December 31, 2004 $ 250,000
----------------------- ---------------------
March 31, 2005 $ 250,000
----------------------- ---------------------
June 30, 2005 $ 250,000
----------------------- ---------------------
September 30, 2005 $3,125,000
----------------------- ---------------------
26
----------------------- ---------------------
December 31, 2005 $3,125,000
----------------------- ---------------------
March 31, 2006 $3,125,000
----------------------- ---------------------
Termination Date $85,375,000
----------------------- ---------------------
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances outstanding on such date.
(b) ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Lenders the
aggregate outstanding principal amount of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances on the
following dates in the amounts indicated (which amounts shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.05):
----------------------- ---------------------
Date Amount
----------------------- ---------------------
December 31, 2002 $ 150,000
----------------------- ---------------------
March 31, 2003 $ 150,000
----------------------- ---------------------
June 30, 2003 $ 150,000
----------------------- ---------------------
September 30, 2003 $ 150,000
----------------------- ---------------------
December 31, 2003 $ 150,000
----------------------- ---------------------
March 31, 2004 $ 150,000
----------------------- ---------------------
June 30, 2004 $ 150,000
----------------------- ---------------------
September 30, 2004 $ 150,000
----------------------- ---------------------
December 31, 2004 $ 150,000
----------------------- ---------------------
March 31, 2005 $ 150,000
----------------------- ---------------------
June 30, 2005 $ 150,000
----------------------- ---------------------
September 30, 2005 $ 1,875,000
----------------------- ---------------------
December 31, 2005 $ 1,875,000
----------------------- ---------------------
27
----------------------- ---------------------
March 31, 2006 $ 1,875,000
----------------------- ---------------------
Termination Date $ 51,225,000
----------------------- ---------------------
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances outstanding on such date.
SECTION 2.04. Intentionally Omitted.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may, upon at least
one Business Day's notice in the case of Base Rate Advances and three Business
Days' notice in the case of Eurodollar Rate Advances, in each case to the
Administrative Agent stating the proposed date and aggregate principal amount of
the prepayment, and if such notice is given the borrower shall, prepay the
outstanding aggregate principal amount of the Advances comprising part of the
same Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the aggregate principal amount prepaid; provided,
however, that (x) each partial prepayment shall be in an aggregate principal
amount of $500,000 or an integral multiple of $500,000 in excess thereof and (y)
if any prepayment of a Eurodollar Rate Advance is made on a date other than the
last day of an Interest Period for such Advance, the Borrower shall also pay any
amounts owing pursuant to Section 9.04(c). Each such prepayment of any Advances
shall be applied ratably (i) to each Facility and (ii) to each Lender thereunder
and to the installments thereof on a pro rata basis.
(b) Mandatory. (i) The Borrower shall, on the 90th day following the end of
each Fiscal Year commencing with the 2002 Fiscal Year, prepay an aggregate
principal amount of the Advances comprising part of the same Borrowings in an
amount equal to the amount of Excess Cash Flow in excess of $5,000,000 for such
Fiscal Year.
(ii) The Borrower shall, within two Business Days after the date of receipt
of the Net Cash Proceeds by the Borrower or any of its Subsidiaries from (A) the
sale, lease, transfer or other disposition of any assets of the Borrower or any
of its Subsidiaries (other than leases in the ordinary course of business or any
sale, lease, transfer or other disposition of assets pursuant to clause (i),
(ii), (iv) or (v) of Section 5.02(e)) and (B) any Extraordinary Receipt received
by, or paid to, or for the account of, the Borrower or any of its Subsidiaries
and not otherwise included in clause (A) above, prepay an aggregate principal
amount of the Advances comprising part of the same Borrowings in an amount equal
to the amount of such Net Cash Proceeds.
(iii) The Borrower shall, within two Business Days after the date of
receipt, prepay an aggregate principal amount of the Advances comprising part of
the same Borrowings in an amount equal to 33.33% of the proceeds received on
account of any offering of any Equity Interests of the Parent or any other Loan
Party on or after September 30, 2004, except for Equity Interests consisting of
any (x) Reorganization Securities, (y) common stock of the Parent, the proceeds
of the issuance and sale of which are applied to refinance the Series A
Preferred Stock at not more than 100% of liquidation value plus accrued
dividends, or (z) Equity Plan Securities.
(iv) The Borrower shall, within two Business Days after the date of receipt
(or if later, within two Business Days after the Amendment Effective Date),
prepay an aggregate principal
28
amount of the Advances comprising part of the same Borrowings in an amount equal
to the Net Advance Payments received by the Borrower under indefeasible right to
use agreements relating to excess raised floor space at the e-deltacom facility
located in Suwanee, Georgia, which are entered into by the Borrower after August
22, 2002; provided, that until NTFC and GECC have received payment of an
aggregate of $6,000,000 under the NTFC Capital Lease and the GECC Capital Lease,
as contemplated under Section 1(a)(ii) of the Capital Lease Amendment, the
Borrower shall prepay to the Lenders only 75% of the amount of such Net Advance
Payments.
(v) The Borrower shall, within 60 days after the date of the applicable
Financial Covenants Certificate, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings in an amount equal to the amount
by which the actual Capital Expenditures set forth therein exceeds the maximum
Capital Expenditures for such period, as set forth in Section 5.02(q)(i).
(vi) The Borrower shall, within 60 days after the date of the applicable
Financial Covenants Certificate, prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings in an amount necessary to reduce
the amount of Senior Debt so that the Senior Debt Ratio no longer exceeds the
Senior Debt Ratio for the applicable period, as set forth in Section
5.02(q)(ii).
(vii) All prepayments under this subsection (b) shall be made together with
accrued interest to the date of such prepayment on the principal amount prepaid
and shall be applied ratably to each Facility and to the installments thereof on
a pro rata basis.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Base Rate
Margin in effect from time to time, payable in arrears quarterly on the
last day of each March, June, September and December during such periods
and on the date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Eurodollar
Rate Margin in effect on the first day of such Interest Period, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of a
Default, the Borrower shall pay interest on (i) the unpaid principal amount of
each Advance owing to each Lender, payable in arrears on the dates referred to
in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
under the Loan Documents
29
that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall
be paid in full and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid, in the case of interest, on
the Type of Advance on which such interest has accrued pursuant to clause (a)(i)
or (a)(ii) above and, in all other cases, on Base Rate Advances pursuant to
clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly after receipt of
a notice of Conversion pursuant to Section 2.08 or a notice of selection of an
Interest Period pursuant to the terms of the definition of "Interest Period",
the Administrative Agent shall give notice to the Borrower and each Lender of
the applicable Interest Period and the applicable interest rate determined by
the Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.
SECTION 2.07. Fees. Commencing on the Amendment Effective Date and on each
anniversary thereof until the Termination Date, the Borrower shall pay to the
Administrative Agent an annual agency fee in the amount of $100,000; provided,
that the Borrower shall receive a credit towards such agency fees for any agency
fees paid to the Administrative Agent as of the Amendment Effective Date for
Fiscal Year 2002.
SECTION 2.08. Conversion of Advances. (a) Optional. The Borrower may on any
Business Day, upon notice given to the Administrative Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Section 2.09, Convert all
or any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Base Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Advances to be Converted and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for such Advances.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any Default, (x)
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
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SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of agreeing to make or of making,
funding or maintaining Eurodollar Rate Advances (excluding, for purposes of this
Section 2.09, any such increased costs resulting from (x) Taxes or Other Taxes
(as to which Section 2.11 shall govern) and (y) changes in the basis of taxation
of overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender Party is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost; provided,
however, that a Lender Party claiming additional amounts under this Section
2.09(a) agrees to use reasonable efforts (consistent with internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such a designation would avoid the need for, or reduce
the amount of, such increased cost that may thereafter accrue and would not, in
the reasonable judgment of such Lender Party, be otherwise disadvantageous to
such Lender Party. A certificate as to the amount of such increased cost,
submitted to the Borrower by such Lender Party, shall be conclusive and binding
for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender Party or
any corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend hereunder and other
commitments of such type, then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party in the light of such circumstances,
to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party's commitment to
lend hereunder. A certificate as to such amounts submitted to the Borrower by
such Lender Party shall be conclusive and binding for all purposes, absent
manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any Facility,
Lenders owed at least a majority of the then aggregate unpaid principal amount
thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Appropriate Lenders, whereupon (i) each such Eurodollar Rate
Advance under such Facility will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
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(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lenders, be otherwise
disadvantageous to such Lender.
SECTION 2.10. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes, irrespective of any right of counterclaim
or set-off (except as otherwise provided in Section 2.14), not later than 11:00
A.M. (New York City time) on the day when due in U.S. dollars to the
Administrative Agent at the Administrative Agent's Account in same day funds,
with payments being received by the Administrative Agent after such time being
deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and to the extent
payment owed to such Lender Party is not made when due hereunder or, in the case
of a Lender, under the Note held by such Lender, to charge from time to time
against any or all of the Borrower's accounts with such Lender Party any amount
so due.
(c) All computations of interest based on the Base Rate and fees shall be
made by the Administrative Agent on the basis of a year of 365 or 366 days, as
the case may be, and all computations of interest based on the Eurodollar Rate
and of fees shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest,
32
fees or commissions are payable. Each determination by the Administrative Agent
of an interest rate, fee or commission hereunder shall be conclusive and binding
for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
SECTION 2.11. Taxes. (a) Any and all payments by or for the account of any
Loan Party hereunder, or in respect of the Notes or any other Loan Document,
shall be made, in accordance with Section 2.10, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender Party and each Agent, taxes that are imposed on its
overall net income by the United States and taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which such Lender Party or such Agent, as
the case may be, is organized or any political subdivision thereof and, in the
case of each Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If a Loan Party shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note or other Loan Documents to any Lender Party or any Agent, (i) the sum
payable by such Loan Party shall be increased as may be necessary so that after
such Loan Party and the Administrative Agent have made all required deductions
(including deductions applicable to additional sums payable under this Section
2.11) such Lender Party or such Agent, as the case may be, receives an amount
equal to the sum it would have
33
received had no such deductions been made, (ii) such Loan Party shall make all
such deductions and (iii) such Loan Party shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, each Loan Party shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or other Loan Documents or
from the execution, delivery or registration of, performance under, or otherwise
with respect to, this Agreement, the Notes or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) Each Loan Party shall indemnify each Lender Party and each Agent for
and hold them harmless against the full amount of Taxes and Other Taxes, and for
the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.11, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender Party or
such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the relevant
Loan Party shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes or other Loan
Documents by or on behalf of such Loan Party through an account or branch
outside the United States or by or on behalf of such Loan Party by a payor that
is not a United States person, if such Loan Party determines that no Taxes are
payable in respect thereof, such Loan Party shall furnish, or shall cause such
payor to furnish, to the Administrative Agent, at such address, an opinion of
counsel acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. For purposes of subsections (d) and (e) of this Section 2.11,
the terms "United States" and "United States person" shall have the meanings
specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender, as the case may be, and on
the date of the Assignment and Acceptance pursuant to which it becomes a Lender
Party in the case of each other Lender Party, and from time to time thereafter
as requested in writing by the relevant Loan Party (but only so long thereafter
as such Lender Party remains lawfully able to do so), provide each of the
Administrative Agent and each Loan Party with two original Internal Revenue
Service forms W-8ECI or W-8 or W-8BEN (and, if such Lender Party delivers a form
W-8 or W-8BEN, a certificate representing that such Lender Party is not a "bank"
for purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent
shareholder, within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code, of the Loan Party and is not a controlled foreign corporation related to
the Loan Party, within the meaning of Section 864(d)(4) of the Internal Revenue
Code), as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender Party is exempt from or entitled to
a reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes (or, in the case of a Lender Party providing a form W-8
or W-8BEN, certifying that such Lender Party is a foreign corporation,
partnership, estate or trust). If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement indicate a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying
34
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such forms;
provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.11 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form ▇-▇,
▇-▇▇▇▇ ▇▇ ▇-▇▇▇▇ (or the related certificate described above), that the Lender
Party reasonably considers to be confidential, the Lender Party shall give
notice thereof to the Loan Party and shall not be obligated to include in such
form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the relevant Loan Party with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.11 with respect to Taxes imposed by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the relevant Loan
Party shall take such steps as such Lender Party shall reasonably request to
assist such Lender Party to recover such Taxes.
(g) The Loan Party may replace any Lender Party that has requested
additional amounts under this Section 2.11, by written notice to such Lender
Party and the Administrative Agent and identifying one or more persons each of
which shall be reasonably acceptable to the Administrative Agent (each, a
"Replacement Lender Party", and collectively, the "Replacement Lender Parties")
to replace such Lender Party (the "Replaced Lender Party"); provided that (I)
the notice from such Loan Party to the Replaced Lender Party and the
Administrative Agent provided for herein above shall specify an effective date
for such replacement (the "Replacement Effective Date"), which shall be at least
five (5) Business Days after such notice is given and (ii) as of the relevant
Replacement Effective Date, each Replacement Lender Party shall enter into an
Assignment and Acceptance with the Replaced Lender Party pursuant to Section
9.07(a) (but shall not be required to pay the processing fee otherwise payable
to the Administrative Agent pursuant to Section 9.07(a)), pursuant to which such
Replacement Lender Parties collectively shall acquire, in such proportion among
them as they may agree with such Loan Party and the Administrative Agent, all
(but not less than all) of the Commitments and outstanding Advances of the
Replaced Lender Party, and, in connection therewith, shall pay to the Replaced
Lender Party, as the purchase price in respect thereof, an amount equal to the
sum as of the Replacement Effective Date, without duplication, of (x) the unpaid
principal amount of, and all accrued but unpaid interest on, all outstanding
Advances of the Replaced Lender Party and (y) the Replaced Lender Party's
ratable share of all accrued but unpaid fees owing to the Replaced Lender Party
hereunder.
SECTION 2.12. Sharing of Payments, Etc. If any Lender Party shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 9.07) (a) on account of Obligations due and payable to such
Lender Party hereunder and under the Notes at such time in
35
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered; provided, further, that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by an
Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders. The Borrower agrees that any Lender Party so purchasing an
interest or participating interest from another Lender Party pursuant to this
Section 2.12 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such interest
or participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.13. Use of Proceeds. The proceeds of the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇
Advances and the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Advances shall be available (and the Borrower
agrees that it shall use such proceeds) solely for working capital and other
general corporate purposes.
SECTION 2.14. Defaulting Lenders. (a) Intentionally omitted.
(b) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative
36
Agent or distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amounts
then owing to the Administrative Agent hereunder; and
(ii) second, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.14.
(c) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Amount
and (iii) the Borrower, any Agent or any other Lender Party shall be required to
pay or distribute any amount hereunder or under any other Loan Document to or
for the account of such Defaulting Lender, then the Borrower or such Agent or
such other Lender Party shall pay such amount to the Administrative Agent to be
held by the Administrative Agent, to the fullest extent permitted by applicable
law, in escrow or the Administrative Agent shall, to the fullest extent
permitted by applicable law, hold in escrow such amount otherwise held by it.
Any funds held by the Administrative Agent in escrow under this subsection (c)
shall be deposited by the Administrative Agent in an account with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated, in the name and under the control of the Administrative
Agent, but subject to the provisions of this subsection (c). The terms
applicable to such account, including the rate of interest payable with respect
to the credit balance of such account from time to time, shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& Co. Incorporated's standard terms applicable to escrow accounts maintained
with it. Any interest credited to such account from time to time shall be held
by the Administrative Agent in escrow under, and applied by the Administrative
Agent from time to time in accordance with the provisions of, this subsection
(c). The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Lender
Party, as and when such Advances or amounts are required to be made or paid and,
if the amount so held in escrow shall at any time be insufficient to make and
pay all such Advances and amounts required to be made or paid at such time, in
the following order of priority:
(i) first, to the Administrative Agent for any amounts then due and
payable by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
37
(iii) third, to the Borrower for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this Section
2.14 are in addition to other rights and remedies that the Borrower may have
against such Defaulting Lender and that any Agent or any Lender Party may have
against such Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.15. Evidence of Debt; Register. (a) Each Lender Party shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Advance
owing to such Lender Party from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Note and a Tranche 2 Term B Note,
as applicable, in substantially the form of Exhibits A-1 and A-2 hereto,
respectively, payable to the order of such Lender Party in a principal amount
equal to the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Commitment and the ▇▇▇▇▇▇▇ ▇ ▇▇▇▇ ▇ Commitment,
respectively, of such Lender Party. The Lenders hereby agree that any promissory
notes evidencing the Advances issued by the Borrower to any Lender prior to the
date hereof shall be deemed null and void and of no further force or effect for
any and all purposes, and each Lender that is a holder of any such note agrees
to surrender such note to the Borrower. All references to Notes in the Loan
Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a register for the recordation of the names and addresses of the
Lender Parties and the Commitment under each Facility of each Lender Party from
time to time (the "Register"). The Register maintained by the Administrative
Agent pursuant to this Section shall also include a control account, and a
subsidiary account for each Lender Party, in which accounts (taken together)
shall be recorded (i) the date and amount of each Borrowing made hereunder, the
Type of Advances comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
Party hereunder, and (iv) the amount of any sum received by the Administrative
Agent from the Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the Register
pursuant to subsection (b) above, and by each Lender Party in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to become due and payable
from the Borrower to, in the case of the Register, each Lender
38
Party and, in the case of such account or accounts, such Lender Party, under
this Agreement, absent manifest error; provided, however, that the failure of
the Administrative Agent or such Lender Party to make an entry, or any finding
that an entry is incorrect, in the Register or such account or accounts shall
not limit or otherwise affect the obligations of the Borrower under this
Agreement.
(d) The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agents and the Lender
Parties may treat each Person whose name is recorded in the Register as a Lender
Party hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Agent or any Lender Party at any
reasonable time and from time to time upon reasonable prior notice.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Amendment Effective Date. The
occurrence of the Amendment Effective Date is subject to the satisfaction of the
following conditions precedent:
(a) The Amendment Effective Date shall occur on or before November
27, 2002.
(b) The Administrative Agent shall have received the following,
each dated the Amendment Effective Date (unless otherwise specified), in
form and substance satisfactory to the Administrative Agent (unless
otherwise specified) and (except for the Notes) in sufficient copies for
each Lender Party:
(i) The Notes payable to the order of the Lenders, to the
extent requested by any Lender pursuant to Section 2.15(a).
(ii) An amended and restated security agreement in
substantially the form of Exhibit D hereto (together with each other
security agreement and security agreement supplement delivered
pursuant to Section 5.01(j), in each case as amended, the "Security
Agreement"), duly executed by each Loan Party, together with:
(A) certificates representing the Pledged Shares referred
to therein accompanied by undated stock powers executed in
blank and instruments evidencing the Pledged Debt indorsed in
blank,
(B) acknowledgment copies or stamped receipt copies of
proper financing statements (or proper amendments to any
financing statements filed pursuant to the Existing Credit
Agreement), duly filed on or before the Amendment Effective
Date under the Uniform Commercial Code of all jurisdictions
that the Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the first priority
liens and security interests created under the Security
Agreement, covering the Collateral described in the Security
Agreement,
(C) completed requests for information, dated on or
before the Amendment Effective Date, listing the financing
statements referred to in
39
clause (B) above and all other effective financing statements
filed in the jurisdictions referred to in clause (B) above that
name any Loan Party as debtor, together with copies of such
other financing statements,
(D) evidence of the completion of all other recordings
and filings of or with respect to the Security Agreement that
the Administrative Agent may reasonably deem necessary or
desirable in order to perfect and protect the Liens created
thereby,
(E) evidence of the insurance required by the terms of
the Security Agreement,
(F) copies of the Assigned Agreements referred to in the
Security Agreement, together with a consent to such assignment,
in substantially the form of Exhibit B to the Security
Agreement, duly executed by each party to such Assigned
Agreements other than the Loan Parties,
(G) the Pledged Account Letters referred to in the
Security Agreement, duly executed by each Pledged Account Bank
referred to in the Security Agreement, and
(H) evidence that all other action that the
Administrative Agent may deem reasonably necessary or desirable
in order to perfect and protect the first priority liens and
security interests created under the Security Agreement has
been taken (including, without limitation, receipt of duly
executed payoff letters, UCC-3 termination statements,
landlords' and bailees' waiver and consent agreements and
account control and cash management agreements in form and
substance satisfactory to the Administrative Agent).
(iii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the transactions contemplated
by the Loan Documents and each Loan Document to which it is or is to
be a party, and of all documents evidencing other necessary corporate
action and governmental and other third party approvals and consents,
if any, with respect to the transactions contemplated by the Loan
Documents and each Loan Document to which it is or is to be a party.
(iv) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably
near the date of the Amendment Effective Date, certifying (A) as to a
true and correct copy of the charter of such Loan Party and each
amendment thereto on file in such Secretary's office and (B) that (1)
such amendments are the only amendments to such Loan Party's charter
on file in such Secretary's office, (2) to the extent that the
Secretary of State of the applicable jurisdiction of incorporation
provides such a certification, such Loan Party has paid all franchise
taxes to the date of such certificate and (C) such Loan Party is duly
incorporated and in good standing or presently subsisting under the
laws of the State of the jurisdiction of its incorporation.
40
(v) A copy of a certificate of the Secretary of State in
each jurisdiction in which each Loan Party is qualified to do
business, dated reasonably near the date of the Amendment Effective
Date, stating that such Loan Party is duly qualified and in good
standing as a foreign corporation in such State and has filed all
annual reports required to be filed to the date of such certificate.
(vi) A certificate of each Loan Party, signed on behalf of
such Loan Party by its President or a Vice President and its Secretary
or any Assistant Secretary, dated the Amendment Effective Date (the
statements made in which certificate shall be true on and as of the
Amendment Effective Date), certifying as to (A) the absence of any
amendments to the charter of such Loan Party since the date of the
Secretary of State's certificate referred to in Section 3.01(b)(iv),
except as set forth in the Plan of Reorganization, (B) a true and
correct copy of the bylaws of such Loan Party as in effect on the date
on which the resolutions referred to in Section 3.01(b)(iii) were
adopted and on the Amendment Effective Date, (C) the due incorporation
and good standing or valid existence of such Loan Party as a
corporation organized under the laws of the jurisdiction of its
incorporation, and the absence of any proceeding for the dissolution
or liquidation of such Loan Party, (D) the truth of the
representations and warranties contained in the Loan Documents as
though made on and as of the Amendment Effective Date and (E) the
absence of any event occurring and continuing, or resulting from
entering into this Agreement, that constitutes a Default.
(vii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(viii) Certificates, in substantially the form of Exhibit F
hereto, attesting to the Solvency of each Loan Party after giving
effect to the consummation of the Reorganization Transactions, from
its Chief Financial Officer.
(ix) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
reasonably requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements as of and for Fiscal
Year 2001, and interim financial statements dated the end of the most
recent fiscal quarter for which financial statements are available
(or, in the event the Lender Parties' due diligence review reveals
material changes since such financial statements, as of a later date
within 45 days before the Amendment Effective Date), pro forma
financial statements of the Borrower and forecasts prepared by
management of the Borrower, in form and substance reasonably
satisfactory to the Lender Parties, with respect to Fiscal Year 2002
of balance sheets reflecting "Fresh Start" accounting principles
adopted in accordance with GAAP.
(x) Evidence of insurance naming the Collateral Agent as
additional insured and loss payee with such responsible and reputable
insurance companies or
41
associations, and in such amounts and covering such risks,
as is reasonably satisfactory to the Lender Parties.
(xi) A favorable opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.,
counsel for the Loan Parties, in substantially the form of
Exhibit G hereto and as to such other matters as any Lender
Party through the Administrative Agent may reasonably
request.
(c) The Lender Parties shall be satisfied with the corporate and
legal structure and capitalization of each Loan Party and each of its
Subsidiaries whose Equity Interests are being pledged pursuant to the Loan
Documents, including the terms and conditions of the charter, bylaws and
each class of Equity Interest in each Loan Party and each such Subsidiary
and of each agreement or instrument relating to such structure or
capitalization; provided, that, for purposes of this Section 3.01(c), the
structure, capitalization, charter and bylaws of the Parent as set forth in
the Plan of Reorganization shall be deemed to be satisfactory to the Lender
Parties.
(d) The Lender Parties shall be satisfied that all Surviving Debt
shall be on terms and conditions reasonably satisfactory to the Lender
Parties; provided, that, for purposes of this Section 3.01(d), the
treatment of certain of the Surviving Debt as set forth in the Plan of
Reorganization shall be deemed to be satisfactory to the Lender Parties.
(e) Before giving effect to the Transaction, there shall have
occurred no Material Adverse Change since September 30, 2002, excluding
those changes that have occurred as a result of the events leading up to
and following the commencement of the Chapter 11 Case.
(f) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could reasonably be expected to have a Material Adverse Effect other than
the matters described on Schedule 4.01(f) hereto (the "Disclosed
Litigation") or (ii) could reasonably be expected to have a Material
Adverse Effect on the Transaction or the consummation of the Transaction.
(g) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated by the Loan
Documents shall have been obtained (without the imposition of any
conditions that are not reasonably acceptable to the Lender Parties) and
shall remain in effect (other than any consents and approvals the absence
of which, either individually or in the aggregate, would not have a
Material Adverse Effect); all applicable waiting periods in connection with
the transactions contemplated by the Loan Documents shall have expired
without any action being taken by any competent authority (other than any
action which either individually or in the aggregate with all such actions
would not reasonably be expected to have a Material Adverse Effect), and no
law or regulation shall be applicable in the reasonable judgment of the
Lender Parties, in each case that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated by the Loan Documents
or the rights of the Loan Parties or their Subsidiaries freely to transfer
or otherwise dispose of, or to create any Lien on, any properties now owned
or hereafter acquired by any of them.
(h) All Pre-Amendment Information shall be true and correct in all
material aspects as of the date specified therein, and no additional
information shall have come to the
42
attention of the Administrative Agent or the Required Lenders that could
reasonably be expected to have a Material Adverse Effect.
(i) The Lender Parties shall have completed a due diligence
investigation of the Borrower and its Subsidiaries in scope, and with
results, satisfactory to the Lender Parties, and nothing shall have come to
the attention of the Lender Parties during the course of such due diligence
investigation to lead them to believe that the Transaction will have a
Material Adverse Effect; without limiting the generality of the foregoing,
the Lender Parties shall have been given such access to the management,
records, books of account, contracts and properties of the Borrower and its
Subsidiaries as they shall have requested.
(j) The Borrower (1) shall have paid all accrued fees of the
Administrative Agent and the Lender Parties and all accrued expenses of the
Agents (including the accrued reasonable fees and expenses of legal counsel
and financial advisors to the Administrative Agent) and (2) shall have
funds sufficient to pay all transaction costs contemplated by the
Reorganization Transactions.
(k) The Required Lenders shall be reasonably satisfied that (i) the
Parent and its Subsidiaries will be able to meet their respective
obligations under all employee and retiree welfare plans, (ii) the employee
benefit plans of the Parent and its ERISA Affiliates are, in all material
respects, funded in accordance with the minimum statutory requirements,
(iii) no "reportable event" (as defined in ERISA, but excluding events for
which reporting has been waived) has occurred as to any such employee
benefit plan and (iv) no termination of, or withdrawal from, any such
employee benefit plan has occurred or is contemplated that could reasonably
be expected to result in a material liability.
(l) The Plan of Reorganization shall have been confirmed by the
Bankruptcy Court and the effective date of the Plan of Reorganization shall
have occurred on or before the Amendment Effective Date.
(m) The Borrower shall not have filed a petition for relief or be
the subject of any involuntary petition for relief under the Bankruptcy
Code.
(n) The Parent shall have received not less than $30,000,000 gross
cash proceeds from the issuance of the Reorganization Securities, less
applicable fees and expenses incurred in connection with the sale of such
Reorganization Securities, and all of such proceeds, less such fees and
expenses shall have been contributed to the Borrower.
(o) The Capital Lease Amendment shall have become effective.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows as of the date hereof and the Amendment
Effective Date:
43
(a) Each Loan Party and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, (ii) is duly qualified and
in good standing as a foreign corporation in each other jurisdiction in
which it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not be reasonably likely to have a Material
Adverse Effect and (iii) has all requisite corporate power and authority
(including, without limitation, all governmental licenses, permits and
other approvals) to own or lease and operate its properties and to carry on
its business as now conducted and as currently proposed to be conducted,
except where the failure to have such power or authority would not be
reasonably likely to have a Material Adverse Effect. All of the outstanding
Equity Interests in the Borrower have been validly issued, are fully paid
and non-assessable and are owned by the Parent free and clear of all Liens,
except those created under the Loan Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of its Equity Interests authorized, and the
number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by such Loan
Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Equity Interests in each Loan Party's
Subsidiaries have been validly issued, are fully paid and non-assessable
and are owned by such Loan Party or one or more of its Subsidiaries free
and clear of all Liens, except those created under the Loan Documents.
(c) Upon the consummation of the Reorganization Transactions, the
execution, delivery and performance by each Loan Party of each Loan
Document to which it is or is to be a party, and the consummation of the
transactions contemplated by the Loan Documents, are within such Loan
Party's corporate powers, have been duly authorized by all necessary
corporate action, and do not (i) contravene such Loan Party's charter or
bylaws, (ii) violate any law, rule, regulation (including, without
limitation, Regulation X of the Board of Governors of the Federal Reserve
System), order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
under, any loan agreement, indenture, mortgage, deed of trust, or material
contract, lease or other instrument binding on or affecting any Loan Party,
any of its Subsidiaries or any of their properties or (iv) except for the
Liens created under the Loan Documents, result in or require the creation
or imposition of any Lien upon or with respect to any of the properties of
any Loan Party or any of its Subsidiaries. Upon the consummation of the
Reorganization Transactions, no Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
(d) Upon the consummation of the Reorganization Transactions, no
authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body (including, without
limitation, the FCC or any applicable PUC) or any other third party is
required for (i) the due execution, delivery, recordation, filing or
performance by any Loan Party of any Loan Document to which it is or is to
be a party, or for the
44
consummation of the Transactions, (ii) the grant or affirmation by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) the perfection or maintenance of the Liens created under the
Collateral Documents (including the first priority nature thereof) or (iv)
the exercise by any Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions,
notices and filings listed on Schedule 4.01(d) hereto, all of which have
been duly obtained, taken, given or made and are in full force and effect.
Upon the consummation of the Reorganization Transactions, all applicable
waiting periods in connection with the Transactions have expired without
any action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the Transaction
or the rights of the Loan Parties or their Subsidiaries freely to transfer
or otherwise dispose of, or to create any Lien on, any properties now owned
or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. Upon the consummation of the Reorganization
Transactions, this Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in accordance
with its terms.
(f) Upon the consummation of the Reorganization Transactions, there
is no action, suit, investigation, litigation or proceeding affecting any
Loan Party or any of its Subsidiaries, including any Environmental Action,
pending or, to the Borrower's knowledge, threatened before any court,
governmental agency or arbitrator that (i) would, alone or when considered
in conjunction with any other actions, suits, investigation, litigation or
proceeding affecting any Loan Party, be reasonably likely to have a
Material Adverse Effect other than the Disclosed Litigation or (ii)
purports to affect the legality, validity or enforceability of any Loan
Document or the consummation of Transaction, and there has been no material
adverse change in the status, or financial effect on any Loan Party or any
of its Subsidiaries, of or as a result of the Disclosed Litigation from
that described on Schedule 4.01(f) hereto.
(g) The Consolidated balance sheet of the Parent and its
Subsidiaries as at December 31, 2001, and the related Consolidated
statement of income and Consolidated statement of cash flows of the Parent
and its Subsidiaries for the Fiscal Year then ended, and the Consolidated
balance sheet of the Parent and its Subsidiaries as at September 30, 2002,
and the related Consolidated statement of income and Consolidated statement
of cash flows of the Parent and its Subsidiaries for the nine months then
ended, duly certified by the Chief Financial Officer of the Parent, copies
of which have been furnished to each Lender Party, fairly present, subject,
in the case of said balance sheet as at September 30, 2002, and said
statements of income and cash flows for the nine months then ended, to
year-end audit adjustments, the Consolidated financial condition of the
Parent and its Subsidiaries as at such date and the Consolidated results of
operations of the Parent and its Subsidiaries for the period ended on such
date, all in accordance with GAAP applied on a consistent basis, and since
December 31, 2001, there has been no Material Adverse Change, excluding
those changes that have occurred as a result of events leading up to and
following the commencement of the Chapter 11 Case.
(h) Intentionally omitted.
45
(i) The Consolidated balance sheets, income statements and cash
flows statements of the Borrower and its Subsidiaries delivered to the
Lender Parties pursuant to Section 5.03(e) were or will be prepared in good
faith on the basis of the assumptions stated therein, which assumptions
were or will be fair in light of the conditions existing at the time of
delivery of such information, and represented or will represent, at the
time of delivery, the Borrower's best estimate of its future financial
performance.
(j) No information, exhibit or report furnished by or on behalf of
any Loan Party to any Agent or any Lender Party in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements made therein not
misleading.
(k) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin
Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other transactions
contemplated by the Loan Documents, will violate any provision of such Act
or any rule, regulation or order of the Securities and Exchange Commission
thereunder.
(m) The consummation of the Reorganization Transactions will not
cause a Material Adverse Effect under any indenture, loan or credit
agreement or any lease or other agreement or instrument or any charter or
corporate restriction to which any Loan Party or any of its Subsidiaries is
a party from and after the Amendment Effective Date.
(n) The Collateral Documents create a valid and perfected first
priority security interest in the Collateral, securing the payment of the
Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly
taken in accordance with the provisions of the Security Agreement. The Loan
Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the Liens and security interests created or
permitted under the Loan Documents.
(o) From and after the consummation of the Reorganization
Transactions, each Loan Party will be, individually and together with its
Subsidiaries, Solvent.
(p) (i) Set forth on Schedule 4.01(p) hereto is a complete and
accurate list of all Plans, Multiemployer Plans and Welfare Plans.
(ii) No ERISA Event (i) has occurred and is outstanding or (ii) to
the Borrower's knowledge, is reasonably expected to occur, in each case
with respect to any Plan.
(iii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue
46
Service and furnished to the Lender Parties, is complete and accurate and
fairly presents the funding status of such Plan, and since the date of such
Schedule B there has been no material adverse change in such funding
status.
(iv) Neither any Loan Party nor any ERISA Affiliate has incurred or,
to the Borrower's knowledge, is reasonably expected to incur any Withdrawal
Liability exceeding $1,000,000 to any Multiemployer Plan.
(v) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan, to the Borrower's
knowledge, is reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA.
(q) (i) The operations and properties of each Loan Party and each
of its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could (A)
form the basis of an Environmental Action against any Loan Party or any of
its Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) None of the properties currently or formerly owned or operated
by any Loan Party or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list or to the best of its knowledge, is adjacent to any such
property; there are no and or to the best of its knowledge never have been
any underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are being
or have been treated, stored or disposed on any property currently owned or
to the best of its knowledge operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property formerly
owned or operated by any Loan Party or any of its Subsidiaries; there is no
asbestos or asbestos-containing material on any property currently owned
or, to the best of its knowledge, operated by any Loan Party or any of its
Subsidiaries; and Hazardous Materials have not been released, discharged or
disposed of on any property currently or formerly owned or operated by any
Loan Party or any of its Subsidiaries except as specifically permitted
under Environmental Laws.
(iii) Neither any Loan Party nor any of its Subsidiaries is
undertaking, or has completed, either individually or together with other
potentially responsible parties, any investigation or assessment or
remedial or response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental
or regulatory authority or the requirements of any Environmental Law; and
all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries have been disposed of
in a manner not reasonably expected to result in material liability to any
Loan Party or any of its Subsidiaries.
47
(r) (i) Neither any Loan Party nor any of its Subsidiaries is party to
any tax sharing agreement.
(ii) (x) all tax returns and all material statements, reports and
forms (including estimated tax or information returns) (collectively, the
"Tax Returns") required to be filed with any taxing authority by, or with
respect to, each Loan Party and its Subsidiaries have been timely filed in
accordance with all applicable laws and, as of time of filing, each Tax
Return was accurate and complete and correctly reflected the facts
regarding income, business, assets, operations and the status of each Loan
Party and its Subsidiaries; (y) each Loan Party and its Subsidiaries has
timely paid or made adequate provision for payment of all taxes that are
shown as due and payable on Tax Returns that have been so filed or that are
otherwise required to be paid, including without limitation, assessments,
interest and penalties (other than taxes which are being contested in good
faith and for which adequate reserves are reflected on the financial
statements delivered hereunder) and (z) each Loan Party and its
Subsidiaries have made adequate provision for all taxes payable by such
Loan Party and its Subsidiaries for which no Tax Return has yet been filed
or which are otherwise due.
(iii) Set forth on Part I of Schedule 4.01(r) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each Loan
Party and each of its Subsidiaries and Affiliates for which Federal income
tax returns have been filed and for which the expiration of the applicable
statute of limitations for assessment or collection has not occurred by
reason of extension or otherwise (an "Open Year").
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and each
of its Subsidiaries and Affiliates proposed by the Internal Revenue Service
with respect to Open Years does not exceed $35,000. Set forth on Part II of
Schedule 4.01(r) hereto is a complete and accurate description, as of the
date hereof, of each such item that separately, for all such Open Years,
together with applicable interest and penalties, exceeds $100,000. To the
Borrower's knowledge, no issues have been raised by the Internal Revenue
Service in respect of Open Years that, in the aggregate, could be
reasonably likely to have a Material Adverse Effect.
(v) The aggregate unpaid amount, as of the date hereof, of adjustments
to the state, local and foreign tax liability of each Loan Party and its
Subsidiaries and Affiliates proposed by all state, local and foreign taxing
authorities (other than amounts arising from adjustments to Federal income
tax returns) does not exceed $35,000. No issues have been raised by such
taxing authorities that, in the aggregate, could be reasonably likely to
have a Material Adverse Effect.
(s) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries have been affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or
not covered by insurance) that could be reasonably likely to have a
Material Adverse Effect.
(t) Intentionally omitted.
48
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of its
Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or
assets of such Loan Party or such Subsidiary subject thereto.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all real property owned by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, record owner and gross book and fair
value thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list of all leases of real property under which any Loan Party or any of
its Subsidiaries is the lessee, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries
on the date hereof, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
(z) Set forth on Schedule 4.01(z) hereto is a complete and accurate
list of all patents, trademarks, trade names, service marks and copyrights,
and all applications therefor and licenses thereof, of each Loan Party or
any of its Subsidiaries, showing as of the date hereof the jurisdiction in
which registered, the registration number, the date of registration and the
expiration date.
(aa) Set forth on Schedule 4.01(aa) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries
involving aggregate consideration payable to or by such Loan Party or its
Subsidiaries of $20,000,000 or more in any year. Each such Material
Contract, together with each other Material Contract which shall be set
forth on Schedule 4.01(aa) hereto pursuant to Section 5.01(n)(iii), shows
or shall show as of the date hereof the parties, subject matter and term
thereof. Each such Material Contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise
modified, is in full force and effect and is binding upon and enforceable
against all parties thereto in accordance with its terms, and except as set
forth on Schedule 4.01(aa) hereto, and subject to the consummation of the
Reorganization Transactions, there exists no default under any Material
Contract by any party thereto.
49
ARTICLE V
COVENANTS OF THE PARENT
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid or any
Lender Party shall have any Commitment hereunder, the Parent will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970, the rules
and regulations of the FCC and each applicable PUC.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of
its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, to the extent required by and in accordance with all
Environmental Laws; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Parent or such
Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises; provided, however, that the
Parent and its Subsidiaries may consummate any merger or consolidation
permitted under Section 5.02(d) and provided further that neither the
Parent
50
nor any of its Subsidiaries shall be required to preserve any right,
permit, license, approval, privilege or franchise if the Board of Directors
of the Borrower or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Parent
or such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Parent, such Subsidiary or
the Lender Parties.
(f) Visitation Rights. At any reasonable time upon prior reasonable
notice and from time to time, permit any of the Agents or any of the Lender
Parties, or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and visit
the properties of, the Parent and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Parent and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Parent and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Parent or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. In addition
to the Mortgages to be granted pursuant to subsection (n)(i) of this
Section 5.01, upon (x) the request of the Collateral Agent following the
occurrence and during the continuation of a Default, (y) the formation or
acquisition of any new direct or indirect Subsidiaries by any Loan Party or
(z) the acquisition of any property acquired for a purchase price in excess
of $10,000,000 in any Fiscal Year and $50,000,000 in the aggregate over the
term of this Agreement by any Loan Party, and such property, in the
judgment of the Collateral Agent, shall not already be subject to a
perfected first priority security interest in favor of the Collateral Agent
for the benefit of the Secured Parties, then the Borrower shall, in each
case at the Borrower's expense:
(i) in connection with the formation or acquisition of a
Subsidiary, within 30 days after such formation or acquisition, cause
each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly execute and
deliver to the Collateral Agent a guaranty or guaranty supplement, in
form and substance satisfactory to the Collateral Agent, guaranteeing
the other Loan Parties' obligations under the Loan Documents,
51
(ii) within 30 days after such request, formation or acquisition,
furnish to the Collateral Agent a description of the real and personal
properties of the Loan Parties and their respective Subsidiaries in
detail satisfactory to the Collateral Agent,
(iii) within 60 days after such request, formation or
acquisition, duly execute and deliver, and cause each such Subsidiary
and each direct and indirect parent of such Subsidiary (if it has not
already done so) to duly execute and deliver, to the Collateral Agent
mortgages, pledges, assignments, security agreement supplements and
other security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all the
Obligations of the applicable Loan Party, such Subsidiary or such
parent, as the case may be, under the Loan Documents and constituting
Liens on all such properties,
(iv) within 60 days after such request, formation or acquisition,
take, and cause such Subsidiary or such parent to take, whatever
action (including, without limitation, the recording of mortgages, the
filing of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Collateral Agent to vest
in the Collateral Agent (or in any representative of the Collateral
Agent designated by it) valid and subsisting Liens on the properties
purported to be subject to the mortgages, pledges, assignments,
security agreement supplements and security agreements delivered
pursuant to this Section 5.01(j), enforceable against all third
parties in accordance with their terms,
(v) within 60 days after such request, formation or acquisition,
deliver to the Collateral Agent, upon the request of the Collateral
Agent in its sole discretion, a signed copy of a favorable opinion,
addressed to the Collateral Agent and the other Secured Parties, of
counsel for the Loan Parties reasonably acceptable to the Collateral
Agent as to the matters contained in clauses (i), (iii) and (iv)
above, as to such guaranties, guaranty supplements, mortgages,
pledges, assignments, security agreement supplements and security
agreements being legal, valid and binding obligations of each Loan
Party thereto enforceable in accordance with their terms, as to the
matters contained in clause (iv) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and as to such other
matters as the Collateral Agent may reasonably request,
(vi) within 60 days after such request, formation or acquisition,
or as promptly as practicable thereafter, deliver, upon the request of
the Collateral Agent in its sole discretion, to the Collateral Agent
with respect to each parcel of real property owned by the entity that
is the subject of such request, formation or acquisition such title
reports, surveys and engineering, soils and other reports, and
environmental assessment reports, as may be prepared in the ordinary
course of business by such entity, provided, however, that to the
extent that any Loan Party or any of its Subsidiaries shall have
otherwise received any of the foregoing items with respect to such
real property, such items shall, promptly after the receipt thereof,
be delivered to the Collateral Agent,
52
(vii) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited any and all cash dividends
paid or payable to it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Collateral Account, and with
respect to all other dividends paid or payable to it or any of its
Subsidiaries from time to time, promptly execute and deliver, or cause
such Subsidiary to promptly execute and deliver, as the case may be,
any and all further instruments and take or cause such Subsidiary to
take, as the case may be, all such other action as the Collateral
Agent may deem necessary or desirable in order to obtain and maintain
from and after the time such dividend is paid or payable a perfected,
first priority lien on and security interest in such dividends, and
(viii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Collateral Agent may deem reasonably
necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, mortgages,
pledges, assignments, security agreement supplements and security
agreements.
(k) Further Assurances. (i) Promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, correct, and cause each of
its Subsidiaries promptly to correct, any material defect or error that may
be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender Party through
the Administrative Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust,
trust deeds, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as any Agent, or any Lender Party through
the Administrative Agent, may reasonably require from time to time in order
to (A) carry out more effectively the purposes of the Loan Documents, (B)
to the fullest extent permitted by applicable law, subject any Loan Party's
or any of its Subsidiaries' properties, assets, rights or interests to the
Liens now or hereafter intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens intended
to be created thereunder and (D) assure, convey, grant, assign, transfer,
preserve, protect and confirm more effectively unto the Secured Parties the
rights granted or now or hereafter intended to be granted to the Secured
Parties under any Loan Document or under any other instrument executed in
connection with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries to
do so. Notwithstanding the foregoing, no Loan Party shall be required,
solely pursuant to the provisions of this Section 5.01(k), to encumber any
assets which were not otherwise required to be encumbered on the Amendment
Effective Date or pursuant to Section 5.01(j).
(l) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property
to which the Borrower or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of any default by any party with respect to
such leases and cooperate with the Administrative Agent in all respects to
cure any such default, and cause
53
each of its Subsidiaries to do so, except in each of the foregoing cases
where the failure to do so would not have a Material Adverse Effect.
(m) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each such Material Contract in full force and effect until
the cancellation or termination thereof in accordance with its terms,
enforce each such Material Contract in accordance with its terms, take all
such action to such end as may be from time to time reasonably requested by
the Administrative Agent and, upon request of the Administrative Agent,
make to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or any
of its Subsidiaries is entitled to make under such Material Contract, and
cause each of its Subsidiaries to do so, except in each of the foregoing
cases where the failure to do so would not have a Material Adverse Effect.
(n) Conditions Subsequent. (i) With respect to (1) five Unencumbered
Parcels designated by the Administrative Agent; (2) any newly-acquired
Unencumbered Parcel with a gross book value in excess of $1,000,000; or (3)
any Unencumbered Parcel owned by any Loan Party as of the Amendment
Effective Date in which any such Loan Party has invested such that the
gross book value of the land and any buildings thereon after the investment
is completed is greater than $1,000,000, the Loan Parties shall deliver to
the Administrative Agent, within 90 days of the Amendment Effective Date
with respect to the property designated in clause (1) above and within 90
days of the closing of any such acquisition in clause (2) above or of any
such investment in clause (3) above with respect to such property, the
following, each dated such day (unless otherwise specified) in form and
substance satisfactory to the Lenders: deeds of trust, trust deeds,
mortgages, leasehold mortgages and leasehold deeds of trust in form
reasonably satisfactory to the Administrative Agent (together with the
Assignments of Leases and Rents referred to therein and each other mortgage
delivered pursuant to Section 5.01(j), in each case as amended, the
"Mortgages"), duly executed by the appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been
duly recorded in all filing or recording offices that the
Administrative Agent may reasonably deem necessary or desirable
in order to create a valid first and subsisting Lien on the
property described therein in favor of the Collateral Agent for
the benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "Mortgage
Policies") in form and substance, with endorsements and in amount
reasonably acceptable to the Administrative Agent, issued,
coinsured and reinsured by title insurers acceptable to the
Administrative Agent, insuring the Mortgages to be valid first
and subsisting Liens on the property described therein, free and
clear of all defects (including, but not limited to, mechanics'
and materialmen's Liens) and encumbrances, excepting only
Permitted Encumbrances, and providing for such other affirmative
insurance (including endorsements for future advances under the
Loan Documents and for mechanics' and materialmen's Liens) and
such coinsurance and direct access reinsurance as the
Administrative Agent may reasonably deem necessary or desirable,
54
(C) American Land Title Association form surveys, certified
to the Administrative Agent and the issuer of the Mortgage
Policies in a manner reasonably satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such
surveys is located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other
than encroachments and other defects reasonably acceptable to the
Administrative Agent,
(D) the Assignments of Leases and Rents referred to in the
Mortgages, duly executed by the appropriate Loan Party,
(E) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as
the Administrative Agent may reasonably deem necessary or
desirable,
(F) evidence of the insurance required by the terms of the
Mortgages, and
(G) evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable in order to
create valid first and subsisting Liens on the property described
in the Mortgages has been taken.
(ii) Within 60 days after the request of the Administrative
Agent, at the Borrower's sole cost and expense, the Borrower shall use
its reasonable best efforts to cause the Debt under this Agreement to
be rated by up to two independent rating agencies selected by the
Administrative Agent for the period through the Termination Date. The
rating, if any, of the Debt under this Agreement by up to two
independent rating agencies at any time shall be referred to herein as
the "Debt Rating."
(iii) Within 90 days after the Amendment Effective Date, the
Parent shall supplement Schedule 4.01(aa) hereto to set forth thereon
a complete and accurate list of all Material Contracts of each Loan
Party and its Subsidiaries involving, as of the date hereof, aggregate
consideration payable to or by such Loan Party or its Subsidiaries of
$10,000,000 to $19,999,999 in any year, and shall deliver to the
Administrative Agent such Schedule 4.01(aa) as so supplemented.
(iv) Within 10 Business Days after the Amendment Effective Date,
the Borrower shall establish and thereafter maintain in a segregated
account subject to an account control agreement in favor of the
Collateral Agent on behalf of the Lenders cash and Cash Equivalents in
an amount equal to not less than (x) $18,500,000 for the first
twelve-month period following the Amendment Effective Date and (y)
$9,250,000 for the six-month period thereafter (the date which is
eighteen months after the Amendment Effective Date, the "Release
Date"). Subject to the following sentence, no withdrawals may be made
from such account except (i) to make the Contingent Payments or (ii)
to make such other payments as the Administrative
55
Agent may authorize in writing in its discretion. Notwithstanding the
foregoing, such account shall be terminated and any amounts remaining
therein shall be released to the Borrower promptly after the earlier to
occur of (a) the satisfaction in full of all obligations, if any, of the
Loan Parties with respect to the Contingent Payments, or (b) the Release
Date. Any earnings on the funds on deposit in such account shall be
disbursed to the Borrower from time to time.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid or any
Lender Party shall have any Commitment hereunder, the Parent will not, at any
time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Parent or any of its Subsidiaries as debtor, or sign or suffer to exist, or
permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on Schedule
4.01(v) hereto;
(iv) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii); provided that no such Lien shall
extend to or cover any Collateral or assets other than the assets
subject to such Capitalized Leases; and
(v) Liens securing up to $150,000,000 of Debt of the Borrower
under an additional facility (the "Additional Facility") the proceeds
of which shall be used only (x) for working capital purposes in an
amount not to exceed $20,000,000, and (y) for financing of
acquisitions; provided, that with respect to each such acquisition,
the Administrative Agent shall have received (1) a third-party
valuation, reasonably acceptable to the Administrative Agent,
demonstrating that the value of the acquired assets or the acquired
enterprise, less the ascribed value of any intangibles associated
therewith, will be equal to or greater than the aggregate Senior Debt
to be secured by Liens upon such acquired assets or enterprise, (2)
appropriate supporting documentation, reasonably satisfactory to the
Administrative Agent, demonstrating compliance on a pro forma basis,
after giving effect to any such acquisition, with the Senior Debt
Ratio certified by the Chief Financial Officer of the Parent,
provided, that for purposes of the computation of the Senior Debt
Ratio on the pro forma basis contemplated in this clause (2), Senior
Debt Ratio shall be adjusted in the manner contemplated by Section
5.02(q)(ii)(B)(2), and (3) upon the first anniversary of the closing
of such acquisition, evidence of material compliance with the cost
savings set forth in the pro forma forecasts described in clause (2)
above, certified by the Chief
56
Financial Officer of the Parent. Further, any such Lien shall be
permitted hereunder only if (A) such Debt is permitted pursuant to the
proviso of Section 5.02(b), (B) no Default has occurred and is
continuing or would result from the issuance of such Debt, (C) such
Debt matures at least three months after the final maturity date of
the Facilities, (D) the average life of the Additional Facility is
longer that the average life of the Facilities and (E) the interest
rate in respect of the Additional Facility is no greater than 0.50%
per annum above the interest rate applicable to the Facilities (it
being understood that the Debt in respect of the Additional Facility
may be secured, on a pro rata basis (subject to intercreditor
arrangements reasonably satisfactory to the Administrative Agent),
with the Debt in respect of each Facility so long as, after giving
effect to such pro rata security arrangements, the Debt in respect of
both Facilities would be secured by the same collateral that secures
the Additional Facility, in each case, to the extent that all
agreements (other than the Loan Documents) governing the terms of the
Debt of the Parent and its Subsidiaries shall not prohibit such
security arrangements).
(b) Debt. Incur or permit any of its Subsidiaries to Incur any Debt,
provided that the Parent and its Subsidiaries may Incur Debt if, after
giving effect to the Incurrence of such Debt and the receipt and
application of the proceeds therefrom, the Interest Coverage Ratio would be
at least 1.25:1.
Notwithstanding the foregoing, the Parent and its Subsidiaries (except
as specified below) may Incur each and all of the following:
(i) with respect to the Parent and its Subsidiaries, Debt under
the Loan Documents;
(ii) Subordinated Debt of the Parent or the Borrower outstanding
at any time in an aggregate principal amount (together with
refinancings thereof) not to exceed $50,000,000 so long as the
maturity of such Debt is at least three months following the final
maturity date of the Facilities and the other terms and conditions of
such Debt are reasonably satisfactory to the Required Lenders;
(iii) (x) Capitalized Leases not to exceed in the aggregate
$70,000,000 (including any Capitalized Leases constituting Surviving
Debt) at any time outstanding, and (y) in the case of Capitalized
Leases to which any Subsidiary of the Borrower is a party, Debt of the
Borrower of the type described in clause (i) of the definition of
"Debt" guaranteeing the Obligations of such Subsidiary under such
Capitalized Leases;
(iv) the Surviving Debt;
(v) Debt of the Parent so long as (1) a sufficient amount of cash
to pay interest on the Facilities for the next succeeding 24 months
(in the reasonable judgment of the Administrative Agent) is deposited
into escrow on terms and conditions that are mutually acceptable to
the Administrative Agent and the Borrower, (2) the final maturity date
of such Debt is at least three months after the final maturity date of
the Facilities and (3) the Administrative Agent and the Required
Lenders are reasonably satisfied that the Parent and its Subsidiaries
shall be
57
in compliance with the provisions of the Loan Documents for the period
from the end of the escrow arrangements through the final maturity of
the Facilities;
(vi) Debt of the Borrower under Hedge Agreements; provided that
such agreements (a) are designed solely to protect the Borrower or its
Subsidiaries against fluctuations in foreign currency exchange rates
or interest rates and (b) do not increase the Debt of the obligor
outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of
fees, indemnities and compensation payable thereunder; and
(vii) Debt of any Loan Party owed to any other Loan Party.
Notwithstanding any other provision under this Section 5.02(b), the
maximum amount of Debt that the Borrower or a Subsidiary may Incur pursuant
to this Section 5.02(b) shall not be deemed to be exceeded, with respect to
any outstanding Debt, due solely to the result of fluctuations in the
exchange rates of currencies.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof provided that, the Parent or any of its
Subsidiaries may engage in activities that are ancillary or related to its
business.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do so,
except that:
(i) any Subsidiary of the Borrower may merge into or consolidate
with any other Subsidiary of the Borrower, provided that, in the case
of any such merger or consolidation, the Person formed by such merger
or consolidation shall be a Subsidiary of the Borrower, provided
further that, in the case of any such merger or consolidation to which
a Subsidiary Guarantor is a party, the Person formed by such merger or
consolidation shall be a Subsidiary Guarantor;
(ii) in connection with any acquisition permitted under Section
5.02(f) or any acquisition permitted by Section 5.02(a)(v), any
Subsidiary of the Borrower may merge into or consolidate with any
other Person or permit any other Person to merge into or consolidate
with it; provided that the Person surviving such merger shall be a
Subsidiary of the Borrower;
(iii) in connection with any sale or other disposition permitted
under Section 5.02(e) (other than clause (ii) thereof), any Subsidiary
of the Borrower may merge into or consolidate with any other Person or
permit any other Person to merge into or consolidate with it;
(iv) any of the Borrower's Subsidiaries may merge into the
Borrower; and
(v) any Person may merge into the Borrower;
provided, that in each case, immediately after giving effect thereto,
no event shall occur and be continuing that constitutes a Default and
in the case of any such merger to which the
58
Borrower is a party, (i) the Borrower is the surviving corporation and
(ii) except as permitted by Section 5.02(f)(vii), such merger does not
adversely affect the Debt Rating, if any.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other
right to purchase, lease or otherwise acquire any assets, other than
Inventory to be sold in the ordinary course of its business, except:
(i) (A) sales of Inventory in the ordinary course of its
business and (B) sales and leases of assets, including, without
limitation, fiber sales in the ordinary course of its business
consistent with prudent business practice for companies engaged
in similar businesses;
(ii) in a transaction authorized by Section 5.02(d) (other
than subsection (iii) thereof);
(iii) sales of assets for cash and for fair value in an
aggregate amount not to exceed $10,000,000 in any Fiscal Year;
(iv) sales of obsolete equipment for cash in an aggregate
amount not to exceed $20,000,000; and
(v) any sale, lease, transfer or other disposition by the
Parent or any Subsidiary of the Parent to a Loan Party;
provided, that in the case of sales of assets pursuant to clause (iii)
above, the Borrower shall, on the date of receipt by any Loan Party or
any of its Subsidiaries of the Net Cash Proceeds from such sale,
prepay the Advances pursuant to, and in the amount and order of
priority set forth in, Section 2.05(b)(ii), as specified therein.
Nothing in this Section 5.02(e) shall restrict the Parent from
issuing, selling, transferring or otherwise disposing of, for or
without consideration and by dividend or otherwise, any Equity
Interests in the Parent, or any option, warrant or other right to
purchase or otherwise acquire any Equity Interests in the Parent.
(f) Investments in Other Persons. Make or hold, or permit any of
its Subsidiaries to make or hold, any Investment in any Person,
except:
(i) equity Investments by the Parent and its Subsidiaries in
their Subsidiaries outstanding on the date hereof and additional
Investments in Loan Parties;
(ii) loans and advances to employees in the ordinary course
of the business of the Parent and its Subsidiaries in an
aggregate principal amount not to exceed $1,000,000 at any time
outstanding;
(iii) Investments in Cash Equivalents;
(iv) Investments existing on the date hereof and described
on Schedule 4.01(y) hereto;
59
(v) other Investments (including, without limitation,
Investments in acquisitions permitted by Section 5.02(a)(v)) in
an aggregate cash amount invested not to exceed $150,000,000 plus
50% of the Net Cash Proceeds from any issuance of Equity
Interests; provided, however that the Administrative Agent's
consent shall be required for any single Investment in which the
cash to be committed or paid exceeds $10,000,000; provided,
further that with respect to Investments made under this clause
(v): (1) any newly acquired or organized Subsidiary of the Parent
or any of its Subsidiaries shall be a wholly owned Subsidiary
thereof; (2) immediately before and after giving effect thereto,
no Default shall have occurred and be continuing or would result
therefrom; and (3) any company or business acquired or invested
in pursuant to this clause (v) shall be in the same line of
business as the business of the Parent or any of its Subsidiaries
or shall be engaged in an ancillary or related business;
provided, further still that, if (i) any such Investment is made
with a combination of cash and shares, stock or other securities
of the Parent or any of its Subsidiaries and (ii) such Investment
results in the Debt Rating being downgraded by more than one
level, then the Applicable Margin shall increase by 0.50% per
annum.
(vi) extension of trade credit in the ordinary course of
business; and
(vii) shares, stock or other securities of any Person
received in exchange for shares, stock or other securities of the
Parent or any of its Subsidiaries; provided, however that, if
such combination results in the Debt Rating being downgraded by
more than one level, then the Applicable Margin shall increase by
0.50% per annum.
(g) Restricted Payments. In the case of the Borrower and its
Subsidiaries, declare or pay any dividends, purchase, redeem, retire,
defease or otherwise acquire for value any of its Equity Interests now
or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, make
any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such or issue or sell any Equity Interests or
accept any capital contributions (other than capital contributions
from the Borrower's or any such Subsidiary's parent to the extent
permitted under 5.02(f)(i)), or permit any of its Subsidiaries to do
any of the foregoing, or permit any of its Subsidiaries to purchase,
redeem, retire, defease or otherwise acquire for value any Equity
Interests in the Borrower or the Parent except that, if no Event of
Default has occurred and is continuing, the Borrower and its
Subsidiaries may declare and pay dividends in cash or otherwise make
distributions in cash to the Parent, provided, however, that the
Parent may use the proceeds of such cash dividends and other
distributions only to pay (i) scheduled interest and principal of
Surviving Debt or any Debt issued or Incurred by the Parent after the
Amendment Effective Date in accordance with the terms of Section
5.02(b) and (ii) cash in lieu of issuing fractional shares of its
Capital Stock in an aggregate amount not to exceed $250,000.
(h) Amendments of Constitutive Documents. Amend, or permit any of
its Subsidiaries to amend, its certificate of incorporation or bylaws
or other constitutive documents except for any amendment that could
not reasonably be expected to have a Material Adverse Effect. An
amendment of the redemption provisions of the Series A Certificate of
Designation in connection with a sale of any of the Loan Parties shall
not be deemed to have a Material Adverse Effect.
60
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required by generally accepted
accounting principles, or (ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease
or otherwise satisfy prior to the scheduled amortization or maturity
thereof in any manner, or make any payment in violation of any
subordination terms of, any Debt, except (i) the prepayment of the
Advances in accordance with the terms of this Agreement, (ii) the
Capital Lease Amendment Payments, (iii) the Contingent Payments, and
(iv) regularly scheduled or required repayments or redemptions of
Surviving Debt, or amend, modify or change in any manner any term or
condition of any Surviving Debt, except for any amendment,
modification or change that (A) could not reasonably be expected to
have a Material Adverse Effect, (B) that would not accelerate the
scheduled amortization or (C) that would not increase the applicable
interest rate of such Surviving Debt, or permit any of its
Subsidiaries to do any of the foregoing other than to prepay any Debt
payable to the Borrower or another Subsidiary of the Parent.
(k) Negative Pledge. Enter into or suffer to exist, or permit any
of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien
upon any of its property or assets except (i) in favor of the Secured
Parties or (ii) in connection with (A) any Surviving Debt or (B) any
Capitalized Lease permitted by Section 5.02(b)(iii) solely to the
extent that such Capitalized Lease prohibits a Lien on the property
subject thereto.
(l) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its
Subsidiaries to do so, other than any Subsidiary the sole assets of
which consist of its interest in such partnership or joint venture.
(m) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions.
(n) Formation of Subsidiaries. Organize or invest, or permit any
Subsidiary to organize or invest, in any new Subsidiary except (a) as
permitted under Section 5.02(f)(i) or (v) and (b) so long as (i) there
exists no Default or Event of Default both before and after giving
effect to the creation of any new wholly owned Subsidiary and the
transfer of any assets to such wholly owned Subsidiary, (ii)
immediately upon the creation of any new wholly owned Subsidiary, such
Subsidiary shall become a Subsidiary Guarantor, (iii) the Borrower
immediately delivers all shares of stock of the new wholly owned
Subsidiary to the Administrative Lender together with stock powers
executed in blank, and (iv) the Borrower or any Subsidiary of the
Borrower owning any portion of the stock of any such new wholly owned
Subsidiary executes and delivers to the Administrative Lender a pledge
agreement pledging all such stock to secure the Obligations in form
substantially similar to the pledge agreement executed by the Borrower
in connection with this Agreement, the Borrower may create a new
wholly owned Subsidiary of the Borrower.
(o) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay
61
dividends or other distributions in respect of its Equity Interests or
repay or prepay any Debt owed to, make loans or advances to, or
otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents, (ii) any agreement or
instrument evidencing Surviving Debt and (iii) any agreement in effect
at the time such Subsidiary becomes a Subsidiary of the Borrower, so
long as such agreement was not entered into solely in contemplation of
such Person becoming a Subsidiary of the Borrower.
(p) Amendment, Etc., of Material Contracts. Cancel or terminate
(except in accordance with the terms thereof) any Material Contract,
or consent to or accept any cancellation or termination thereof
(except in accordance with the terms thereof), amend or otherwise
modify any such Material Contract or give any consent, waiver or
approval thereunder, waive any default under or breach of any such
Material Contract, agree in any manner to any other amendment,
modification or change of any term or condition of any such Material
Contract or take any other action in connection with any such Material
Contract that would impair the value of the interest or rights of any
Loan Party thereunder or that would impair the interest or rights of
any Agent or any Lender Party, or permit any of its Subsidiaries to do
any of the foregoing, except, in each of the foregoing cases, where to
do so would not be reasonably likely to have a Material Adverse
Effect.
(q) Financial Condition Covenants.
(i) Maximum Capital Expenditures. Make or commit to make, or
allow any of its Subsidiaries to make or commit to make, Capital
Expenditures exceeding, in the aggregate (x) for Fiscal Year
2002, $42,000,000 (exclusive of any Capital Expenditures
classified as "Changes in Accounts Payable: Capital-Related" on
the Borrower's cash flow statement for such Fiscal Year) and (y)
for each Fiscal Year thereafter until the Termination Date, the
greater of (A) EBITDA for such Fiscal Year, less the sum of (I)
cash interest expense for such Fiscal Year, plus (II) amounts
paid under Section 2.03 and all principal payments under the GECC
Capital Lease and the NTFC Capital Lease (a) during Fiscal Year
2002 (for purposes of calculating the maximum Capital
Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004
or the applicable Fiscal Year thereafter (for purposes of
calculating the maximum Capital Expenditures for Fiscal Year 2004
or the applicable succeeding Fiscal Year, as the case may be), or
(B) $10,000,000 for Fiscal Year 2003 and $15,000,000 for each
Fiscal Year thereafter. For purposes of calculating maximum
Capital Expenditures, the amount calculated in item (II) above
shall be deemed not to have exceeded $20,000,000 for Fiscal Year
2004 and shall be deemed not to have exceeded $30,000,000 for
Fiscal Year 2005. Compliance with this Section 5.02(q)(i) shall
be measured at the end of each Fiscal Year, commencing with
Fiscal Year 2002, provided, that in the event actual Capital
Expenditures for any Fiscal Year exceed the maximum Capital
Expenditures for such Fiscal Year computed as aforesaid, then
within 60 days after the date of the applicable Financial
Covenants Certificate, the Borrower shall reduce the Advances by
the amount by which such actual Capital Expenditures exceed such
maximum Capital Expenditures, as set forth in Section 2.05(b)(v),
and the occurrence of such excess shall not constitute a Default
unless the Borrower fails to reduce such Advances within such
60-day period as aforesaid. To the extent the Borrower's actual
Capital Expenditures for any Fiscal Year are less
62
than the maximum Capital Expenditures for such Fiscal Year
computed as aforesaid, the Borrower may increase Capital
Expenditures for the subsequent Fiscal Year by an amount equal to
the amount by which such maximum Capital Expenditures exceed such
actual Capital Expenditures, but not by an amount which exceeds
$5,000,000.
For the purposes of this Section 5.02(q)(i) only, Capital
Expenditures shall not include (i) any commitment violation fee
or other penalty payment made to Nortel Networks, Inc. in an
aggregate amount up to $4,000,000 in Fiscal Year 2003, (ii) the
Contingent Payments and (iii) any payment made in respect of that
certain litigation arising from or in relating in any way to the
use of rights of way granted to the Borrower by Mississippi Power
Company; provided, that, to the extent that such payment referred
to in this clause (iii) is equal to or greater than $5,000,000,
the Borrower shall deliver to the Agent prior to the payment
thereof, a statement that the Borrower will have not less than
$11,500,000 in cash and Cash Equivalents (excluding any insurance
proceeds deposited with the Collateral Agent as described in
clause (C) of the proviso in the definition of "Extraordinary
Receipts") after making such payment, certified by the Chief
Financial Officer of the Parent.
(ii) Senior Debt Ratio. (A) Commencing on the fiscal quarter
ended September 30, 2002 and, measured on the last day of each
fiscal quarter thereafter until the Termination Date, the Senior
Debt Ratio shall not exceed (i) 4.5x with respect to the fiscal
quarter ended September 30, 2002 and the fiscal quarter ending
December 31, 2002, and (ii) 4.0x with respect to each fiscal
quarter ending thereafter. On the date that any Senior Debt
permitted hereunder is Incurred, the Senior Debt Ratio shall not
exceed (x) 4.5x, if such Incurrence occurs during the fiscal
quarter ended September 30, 2002 or ending December 31, 2002, or
(y) 4.0x, if such Incurrence occurs during any fiscal quarter
thereafter. In the event the actual Senior Debt Ratio exceeds the
applicable amount set forth above, then within 60 days after the
date of the applicable Financial Covenants Certificate, the
Borrower shall reduce the Advances to the extent necessary to
comply with the Senior Debt Ratio for such period as set forth in
Section 2.05(b)(vi), and the Borrower's failure in such event to
comply with such Senior Debt Ratio shall not constitute a Default
unless the Borrower fails to reduce such Advances within such
60-day period as aforesaid. Whenever the Senior Debt Ratio is
computed for any purpose under this Agreement, if the computation
is being made with respect to a period that ends: (1) on the last
day of a fiscal quarter, then the Senior Debt and EBITDA, for
purposes of such computation, shall be the Senior Debt and EBITDA
for the twelve-month period ended on such last day of such fiscal
quarter, or (2) on a day other than the last day of a fiscal
quarter, then the Senior Debt and EBITDA, for purposes of such
computation, shall be the Senior Debt and EBITDA for the most
recently completed twelve-month period.
(B)(1) Solely for the purposes of calculating the Senior
Debt Ratio for purposes of subsection (ii)(A) above and for
purposes of calculating the Applicable Eurodollar Rate Margin or
Applicable Base Rate Margin, EBITDA may be adjusted upward (only
to the extent that lost revenue exceeds new revenue) to account
for any reduction in EBITDA resulting from lost revenue from PRI
and IFN accounts related to the sale of capacity along the fiber
network during the period commencing December 31, 2002 and ending
June 30, 2004, determined on the last day of each
63
fiscal quarter during such period, for the period of the four consecutive
fiscal quarters then ended, in an aggregate amount not to exceed the amount
set forth opposite such date below:
--------------------------------------- -----------------------------------
Period Amount
--------------------------------------- -----------------------------------
December 31, 2002 $1,900,000
--------------------------------------- -----------------------------------
March 31, 2003 $3,900,000
--------------------------------------- -----------------------------------
June 30, 2003 $5,800,000
--------------------------------------- -----------------------------------
September 30, 2003 $10,000,000
--------------------------------------- -----------------------------------
December 31, 2003 $7,800,000
--------------------------------------- -----------------------------------
March 31, 2004 $7,300,000
--------------------------------------- -----------------------------------
June 30, 2004 $3,100,000
--------------------------------------- -----------------------------------
Any such adjustment to EBITDA under this subsection (ii)(B)(1) shall be
calculated on a pro-rated net revenue basis multiplied by 90% for the
applicable period pursuant to a compliance schedule reasonably satisfactory
to the Administrative Agent.
(B)(2) Solely for the purposes of calculating the Senior Debt Ratio
for purposes of proviso clause (2) in Section 5.02(a)(v) hereof, EBITDA may
be adjusted by the amount of any cost savings that the Borrower determines
will be realized during the period of nine months following the closing of
the applicable acquisition and which are reasonably acceptable to the
Administrative Agent.
(iii) In the event the Borrower reverses any restructuring charge
previously included in EBITDA and used in the calculation of maximum
Capital Expenditures or the Senior Debt Ratio pursuant to this Section
5.02(q), it shall be required to demonstrate retroactive compliance with
the financial covenants set forth above in this Section 5.02(q) for the
affected periods.
SECTION 5.03. Reporting Requirements. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid or any
Lender Party shall have any Commitment hereunder, the Borrower will furnish to
the Agents and the Lender Parties:
(a) Default Notice. As soon as possible and in any event within two days
after the occurrence of each Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the date of
such statement, a statement of the Chief Financial Officer of the Borrower
setting forth details of such Default or any such event, development or
occurrence and the action that the Borrower has taken and proposes to take with
respect thereto.
(b) Annual Financials. As soon as available and in any event within 90
days after the end of each Fiscal Year, a copy of an annual report on Form
10-K for such year for the Parent and its Subsidiaries, including therein a
Consolidated balance sheet of the Parent and its Subsidiaries as of the end
of such Fiscal Year and Consolidated statement of income and a Consolidated
statement of cash flows of the Parent and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the Required
Lenders of BDO ▇▇▇▇▇▇▇, LLP or other independent public accountants of
recognized standing acceptable to
64
the Required Lenders, together with (i) a certificate of such accounting
firm to the Lender Parties stating that in the course of the regular audit
of the business of the Parent and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally accepted
auditing standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement as
to the nature thereof, (ii) a report setting forth all of the Borrower's
IFN revenues and PRI revenues by circuit (or as otherwise agreed), (iii)
the Borrower's calculation of the Senior Debt Ratio for the last quarter of
such Fiscal Year and maximum Capital Expenditures for such Fiscal Year, a
statement as to the amount of Debt of the Borrower outstanding under any
Additional Facility and the amount of proceeds from any sale of assets,
including obsolete equipment, received during such Fiscal Year (provided,
that any such sale of assets individually or as part of a series of related
transactions resulted in receipt of proceeds in excess of $100,000 in such
Fiscal Year), and a statement of the Borrower's calculation of Excess Cash
Flow for such Fiscal Year, each with supporting documentation and in
reasonable detail, and (iv) a certificate of the Chief Financial Officer of
the Borrower stating that the representations and warranties in each Loan
Document are correct in all material respects on and as of such date, other
than any such representations or warranties that, by their terms, refer to
a specific date other than such date, in which case as of such date and
that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower has taken and proposes to take with respect
thereto.
(c) Quarterly Financials. As soon as available and in any event within
45 days after the end of each of the first three quarters of each Fiscal
Year, (i) Consolidated balance sheet of the Parent and its Subsidiaries as
of the end of such quarter and Consolidated statement of income and a
Consolidated statement of cash flows of the Parent and its Subsidiaries for
the period commencing at the end of the previous fiscal quarter and ending
with the end of such fiscal quarter and Consolidated statement of income
and a Consolidated statement of cash flows of the Parent and its
Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or
period of the preceding Fiscal Year, (ii) a report setting forth all of the
Borrower's IFN revenues and PRI revenues by circuit (or as otherwise
agreed) for the preceding twelve months, and (iii) a certificate setting
forth the Borrower's calculation of the Senior Debt Ratio for such fiscal
quarter with supporting documentation, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments) by the Chief
Financial Officer of the Parent as having been prepared in accordance with
GAAP (with respect to item (i)), together with a certificate of such Chief
Financial Officer stating that the representations and warranties in each
Loan Document are correct in all material respects on and as of such date,
other than any such representations or warranties that, by their terms,
refer to a specific date other than such date, in which case as of such
date and that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof and
the action that the Parent has taken and proposes to take with respect
thereto.
(d) Monthly Financials. As soon as available and in any event within
30 days after the end of each month, (i) a Consolidated balance sheet of
the Parent and its Subsidiaries as of the end of such month, a Consolidated
statement of income and a Consolidated statement of cash flows of the
Parent and its Subsidiaries for the period commencing at the end of the
previous month and ending with the end of such month, and a
65
Consolidated statement of income and a Consolidated statement of cash flows
of the Parent and its Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of such month, setting
forth in each case in comparative form the corresponding figures for the
preceding month, all in reasonable detail and duly certified by the Chief
Financial Officer of the Parent, and (ii) a condensed receivables aging
report, prepared in accordance with the Borrower's customary practice from
time to time, for the Borrower and its Subsidiaries for such month with
respect to their major lines of business and any significant specific
accounts review necessary to support bad debt allowances, certified by the
Chief Financial Officer of the Parent as fairly and accurately reporting
the information described therein, and (iii) a certificate of the Chief
Financial Officer of the Parent setting forth EBITDA for the last twelve
months then ended.
(e) Forecasts and Budgets. As soon as available and in any event no
later than 45 days after the end of each Fiscal Year, the following
prepared by management of the Borrower, in form satisfactory to the
Administrative Agent (i) balance sheets, income statements and cash flow
statements on a monthly and annual basis for the Fiscal Year following such
prior Fiscal Year; (ii) balance sheets, income statements and cash flow
statements on an annual basis for each Fiscal Year thereafter until the
Termination Date; and (iii) a selling, general and administrative expense
budget and a capital expenditure budget for the Borrower and its
Subsidiaries for each Fiscal Year in form and substance reasonably
satisfactory to the Administrative Agent.
(f) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f), and promptly
after the occurrence thereof, notice of any adverse change in the status or
the financial effect on any Loan Party or any of its Subsidiaries of the
Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files with the
Securities and Exchange Commission or any governmental authority that may
be substituted therefor, or with any national securities exchange.
(h) Creditor Reports. Promptly after the furnishing thereof, copies of
any statement or report furnished to any holder of Debt securities of any
Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lender Parties pursuant to any other clause of this
Section 5.03.
(i) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of
its Subsidiaries under or pursuant to any Material Contract or material
instrument, indenture, loan or credit or similar agreement and, from time
to time upon request by the Administrative Agent, such information and
reports regarding the Related Documents, the Material Contracts and such
66
instruments, indentures and loan and credit and similar agreements as the
Administrative Agent may reasonably request.
(j) Revenue Agent Reports. Within 10 days after receipt, copies of all
Revenue Agent Reports (Internal Revenue Service Form 886), or other written
proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the meaning of Section 1504(a)(1)
of the Internal Revenue Code) of which the Borrower is a member aggregating
$2,000,000 or more.
(k) Tax Certificates. (x) Promptly, and in any event within fifteen
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a certificate (a
"Tax Certificate"), signed by the President or the Chief Financial Officer
of the Borrower, stating that the Borrower has paid to the Internal Revenue
Service or other taxing authority, the full amount that the Borrower is
required to pay in respect of Federal income tax for such year and that the
Borrower and its Subsidiaries have received any amounts payable to them,
and have not paid amounts in respect of taxes (Federal, state, local or
foreign) in excess of the amount they are required to pay, under the Tax
Agreement in respect of such taxable year, and (y) all correspondence
between the Borrower and the Internal Revenue Service or other taxing
authority relating to any request for, grant of and compliance with any
extensions granted with respect to the filing of any income tax returns.
(l) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to know that any ERISA Event has occurred, a statement of the
Chief Financial Officer of the Borrower describing such ERISA Event and the
action, if any, that such Loan Party or such ERISA Affiliate has taken and
proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(ii) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any Plan or
to have a trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that is reasonably expected to be
incurred, by such Loan Party or any ERISA Affiliate in connection with any
event described in clause (A) or (B).
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(m) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(n) Real Property. (i) As soon as available and in any event within 30
days after the end of each Fiscal Year, a report supplementing Schedules
4.01(w) and 4.01(x) hereto, including an identification of all owned and
leased real property disposed of by the Borrower or any of its Subsidiaries
during such Fiscal Year, a list and description (including the street
address, county or other relevant jurisdiction, state, record owner, book
value thereof and, in the case of leases of property, lessor, lessee,
expiration date and annual rental cost thereof) of all real property
acquired or leased during such Fiscal Year and a description of such other
changes in the information included in such Schedules as may be necessary
for such Schedules to be accurate and complete and (ii) promptly inform the
Administrative Agent of any investments in any of the real property listed
on Schedule 4.01(w) hereto proposed to be made by any Loan Party or Loan
Parties such that thereafter, the value thereof shall exceed $1,000,000
individually.
(o) Insurance. As soon as available and in any event within 30 days
after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as
any Agent, or any Lender Party through the Administrative Agent, may
reasonably specify.
(p) Senior Debt Ratio Certification. Within 15 days prior to any
proposed Incurrence of any Senior Debt or any acquisition financed by any
Senior Debt, a certificate of the Chief Financial Officer of the Parent
demonstrating pro forma compliance, after giving effect to such issuance or
acquisition, with the then applicable Senior Debt Ratio for the last twelve
months then ended.
(q) New Accounts. Promptly after opening an account with a bank or
other financial institution not subject to an account control agreement
referred to in Section 3.01(b)(ii)(H), notification thereof.
(r) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Agent, or any
Lender Party through the Administrative Agent, may from time to time
reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
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(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail
to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause
(ii) within three Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in ▇▇▇▇▇▇▇ ▇.▇▇(▇), ▇.▇▇, ▇.▇▇(▇), (▇), (▇), (▇) or
(m), 5.02 or 5.03; provided, that (i) failure to comply with the covenant
set forth in Section 2.05(b)(ii) or (iii) shall not constitute an Event of
Default unless and until such failure shall remain unremedied for three
Business Days and (ii) failure to comply with the covenant set forth in
Section 2.05(b)(iv) shall not constitute an Event of Default unless and
until such failure shall remain unremedied for ten Business Days; provided,
further, that failure to comply with the covenant set forth in Section
5.02(q)(i) or (ii) shall not constitute an Event of Default unless the
Borrower fails to reduce Advances to the extent specified in Section
5.02(q)(i) or (ii), as applicable, within the 60-day period referred to
therein; or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by any Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt that is outstanding in a principal amount (or, in the case of
any Hedge Agreement, an Agreement Value) of at least $2,000,000 either
individually or in the aggregate (but excluding Debt outstanding hereunder)
of such Loan Party or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
any Loan Party or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order
69
for relief or the appointment of a receiver, trustee, or other similar
official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by
it) that is being diligently contested by it in good faith, either such
proceeding shall remain undismissed or unstayed for a period of 60 days or
any of the actions sought in such proceeding (including, without
limitation, the entry of an order for relief against, or the appointment of
a receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any of
its Subsidiaries shall take any corporate action to authorize any of the
actions set forth above in this subsection (f); or
(g) any judgments or orders for the payment of money (individually or
in the aggregate) in excess of $5,000,000 (other than in connection with
the Contingent Payments) shall be rendered against any Loan Party or any of
its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgments or orders or (ii) there shall
be any period of 10 consecutive days during which a stay of enforcement of
any such judgments or orders, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party to it, or any such Loan
Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to Section
3.01 or 5.01(j) shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority lien on and
security interest in the Collateral purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $2,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $2,000,000 or requires
payments exceeding $1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is
70
being terminated, within the meaning of Title IV of ERISA, and as a result
of such reorganization or termination the aggregate annual contributions of
the Loan Parties and the ERISA Affiliates to all Multiemployer Plans that
are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
plan years of such Multiemployer Plans immediately preceding the plan year
in which such reorganization or termination occurs by an amount exceeding
$1,000,000; or
(o) an "Event of Default" (as defined in any Mortgage) shall have
occurred and be continuing;
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Bankruptcy Code, the Notes,
all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor,
jointly and severally, hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all reasonable expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Agreement or any other Loan Document. Without limiting the generality of
the foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) Each Guarantor, and by its acceptance of this Agreement, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Agreement and the Obligations of
each Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable
71
to this Guaranty and the Obligations of each Guarantor hereunder. To effectuate
the foregoing intention, the Administrative Agent, the other Lender Parties and
the Guarantors hereby irrevocably agree that the obligations of each Guarantor
under this Guaranty at any time shall be limited to the maximum amount as will
result in the Obligations of such Guarantor under this Agreement not
constituting a fraudulent transfer or conveyance.
(c) Each Guarantor hereby unconditionally and irrevocably agrees that in
the event any payment shall be required to be made to any Secured Party under
this Agreement or any other guaranty, such Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender with respect thereto. The obligations of each Guarantor under or in
respect of this Agreement are independent of the Guaranteed Obligations or any
other obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Agreement, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Agreement shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral any other collateral, or
proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Loan Party under the
Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
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(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party
now or hereafter known to such Secured Parties (each Guarantor waiving any
duty on the part of the Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Agreement, any Guaranty Supplement or any other guaranty or agreement or
the release or reduction of liability of any Guarantor or other guarantor
or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Secured Party that might otherwise constitute a defense available to,
or a discharge of, any Loan Party or any other guarantor or surety.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Secured Party
or any other Person upon the insolvency, bankruptcy or reorganization of the
Borrower or any other Loan Party or otherwise, all as though such payment had
not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Agreement and any requirement that
any Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any right
to revoke this Agreement and acknowledges that this Agreement is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of such
Guarantor hereunder.
(d) Each Guarantor hereby unconditionally and irrevocably waives any duty
on the part of any Secured Party to disclose to such Guarantor any matter, fact
or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party or any
of its Subsidiaries now or hereafter known by such Secured Party.
(e) Each Guarantor acknowledges that it will receive substantial direct and
indirect benefits from the financing arrangements contemplated by the Loan
Documents and that the
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waivers set forth in Section 7.02 and this Section 7.03 are knowingly made in
contemplation of such benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower or any other Loan Party or any other inside
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Agreement or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against the Borrower,
any other Loan Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Agreement shall have been paid in full in cash. If any amount shall be paid to
any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of
(a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Agreement, and (b) the Termination Date, such amount
shall be received and held in trust for the benefit of the Secured Parties,
shall be segregated from other property and funds of such Guarantor and shall
forthwith be paid or delivered to the Administrative Agent in the same form as
so received (with any necessary endorsement or assignment) to be credited and
applied to the Guaranteed Obligations and all other amounts payable under this
Agreement, whether matured or unmatured, in accordance with the terms of the
Loan Documents, or to be held as collateral for any Guaranteed Obligations or
other amounts payable under this Agreement thereafter arising. If (i) any
Guarantor shall make payment to any Secured Party of all or any part of the
Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Agreement shall have been paid in full in cash, and
(iii) the Termination Date shall have occurred, the Secured Parties will, at
such Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by such
Guarantor pursuant to this Agreement.
SECTION 7.05. Guaranty Supplements. Upon the execution and delivery by any
Person of a guaranty supplement in substantially the form of Exhibit I hereto
(each, a "Guaranty Supplement"), (a) such Person shall be referred to as an
"Additional Guarantor" and shall become and be a Guarantor hereunder, and each
reference in this Agreement to a "Guarantor" shall also mean and be a reference
to such Additional Guarantor, and each reference in any other Loan Document to a
"Subsidiary Guarantor" shall also mean and be a reference to such Additional
Guarantor, and (b) each reference herein to "this Guaranty", "hereunder",
"hereof" or words of like import referring to this Agreement, and each reference
in any other Loan Document to the "Guaranty", "thereunder", "thereof " or words
of like import referring to this Agreement, shall mean and be a reference to
this Agreement as supplemented by such Guaranty Supplement.
SECTION 7.06. Subordination. Each Guarantor hereby subordinates any and all
debts, liabilities and other Obligations owed to such Guarantor by each other
Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 7.06:
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(a) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
may receive regularly scheduled payments from any other Loan Party on
account of the Subordinated Obligations. After the occurrence and during
the continuance of any Default (including the commencement and continuation
of any proceeding under any bankruptcy law relating to any other Loan
Party), however, unless the Required Lenders otherwise agree, no Guarantor
shall demand, accept or take any action to collect any payment on account
of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees
that the Secured Parties shall be entitled to receive payment in full in
cash of all Guaranteed Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any bankruptcy law,
whether or not constituting an allowed claim in such proceeding
("Post-Petition Interest")) before such Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
shall, if the Administrative Agent so requests, collect, enforce and
receive payments on account of the Subordinated Obligations as trustee for
the Secured Parties and deliver such payments to the Administrative Agent
on account of the Guaranteed Obligations (including all Post-Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of
such Guarantor under the other provisions of this Agreement.
(d) Administrative Agent Authorization. After the occurrence and
during the continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to any
other Loan Party), the Administrative Agent is authorized and empowered
(but without any obligation to so do), in its discretion, (i) in the name
of each Guarantor, to collect and enforce, and to submit claims in respect
of, Subordinated Obligations and to apply any amounts received thereon to
the Guaranteed Obligations (including any and all Post-Petition Interest),
and (ii) to require each Guarantor (A) to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and (B) to pay any
amounts received on such obligations to the Administrative Agent for
application to the Guaranteed Obligations (including any and all
Post-Petition Interest).
SECTION 7.07. Continuing Guaranty; Assignments. This Agreement is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Agreement and (ii) the Termination Date, (b) be
binding upon the Guarantor, its successors and assigns and (c) inure to the
benefit of and be enforceable by the Secured Parties and their successors,
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, subject to Section 9.07, any Secured Party may
assign or otherwise transfer all or any portion of its rights and obligations
under this Agreement (including, without limitation, all or any portion of its
Commitments, the Committed Advances owing to it and the Note or Notes held by
it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Secured Party herein or
otherwise, in each case as and to the extent provided in
75
Section 9.07. No Guarantor shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Secured Parties.
SECTION 7.08. Release of Guarantor. In the event that all of the capital
stock of one or more Guarantors is sold or otherwise disposed of (except to the
Borrower or any of its Subsidiaries) or liquidated in compliance with the
requirements of the this Agreement (or such sale or other disposition or
liquidation has been approved in writing by the Required Lenders) and the
proceeds of such sale, disposition or liquidation are applied in accordance with
the provisions of this Agreement, to the extent applicable, such Guarantor shall
be released from this Agreement and this Agreement shall, as to each such
Guarantor or Guarantors, terminate, and have no further force or effect (it
being understood and agreed that the sale of one or more persons that own,
directly or indirectly, all of the capital stock or partnership interests of any
Guarantor shall be deemed to be a sale of such Guarantor for the purposes of
this Section 7.08).
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender Party hereby appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), no Agent shall be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender Party prompt notice
of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on
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the part of any Loan Party or to inspect the property (including the books and
records) of any Loan Party; (e) shall not be responsible to any Lender Party for
the due execution, legality, validity, enforceability, genuineness, sufficiency
or value of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant thereto; and (f)
shall Incur no liability under or in respect of any Loan Document by acting upon
any notice, consent, certificate or other instrument or writing (which may be by
telegram, telecopy or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 8.03. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
shall have the same rights and powers under the Loan Documents as any other
Lender Party and may exercise the same as though it were not an Agent; and the
term "Lender Party" or "Lender Parties" shall, unless otherwise expressly
indicated, include ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in its individual capacity. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person that may do business with or own securities of any Loan Party or any such
Subsidiary, all as if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ was not an Agent and without any duty to
account therefor to the Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender Party and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender Party
also acknowledges that it will, independently and without reliance upon any
Agent or any other Lender Party and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender Party severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents; provided, however, that
no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse each Agent promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 9.04 (other than under Section 9.04(c)),
to the extent that such Agent is not promptly reimbursed for such costs and
expenses by the Borrower.
(b) For purposes of this Section 8.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties and (ii) the Commitments of the
respective Lender Parties at such time. The failure of any Lender Party to
reimburse any Agent promptly upon demand for its ratable share of any amount
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required to be paid by the Lender Parties to such Agent as provided herein shall
not relieve any other Lender Party of its obligation hereunder to reimburse such
Agent for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent
for such other Lender Party's ratable share of such amount. Without prejudice to
the survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 8.05 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign at any time by giving
written notice thereof to the Lender Parties and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent and, in the case of a
successor Collateral Agent, upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements
to the Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. If within 45 days after written notice is given of the retiring
Agent's resignation or removal under this Section 8.06 no successor Agent shall
have been appointed and shall have accepted such appointment, then on such 45th
day (i) the retiring Agent's resignation or removal shall become effective, (ii)
the retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents and (iii) the Required Lenders shall thereafter perform
all duties of the retiring Agent under the Loan Documents until such time, if
any, as the Required Lenders appoint a successor Agent as provided above. After
any retiring Agent's resignation or removal hereunder as Agent shall have become
effective, the provisions of this Article VIII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 8.07. Appointment of Subagents. Anything herein to the contrary
notwithstanding, the Collateral Agent may from time to time, when the Collateral
Agent deems it to be necessary, appoint one or more subagents or collateral
co-agents (each, a "Subagent") with respect to all or any part of the
Collateral. In the event that the Collateral Agent so appoints any Subagent with
respect to any Collateral, (i) the Liens on such Collateral granted pursuant to
the applicable Collateral Documents shall be deemed for purposes of this
Agreement and the other Loan Documents to have been granted to such Subagent, in
addition to the Collateral Agent, for the benefit of the Secured Parties, (ii)
such Subagent shall be automatically vested, in addition to the Collateral
Agent, with all rights, powers, privileges, interests and remedies of the
Collateral Agent under the Loan Documents with respect to such Collateral, (iii)
the provisions of this Article 8 and of Section 9.04 that refer to each Agent
shall be deemed to be references to each Agent and/or each Subagent, as the
context may require, and (iv) the term "Collateral Agent", when used herein or
in any of the applicable Collateral Documents in relation to any rights, powers,
privileges, interests and remedies of the Collateral Agent with respect to such
Collateral shall include such Subagent; provided,
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however, that no such Subagent shall be authorized to take any action with
respect to any such Collateral unless and except to the extent expressly
authorized in writing by the Collateral Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section
3.01, (ii) change the number of Lenders or the percentage of (x) the Commitments
or (y) the aggregate unpaid principal amount of the Advances that, in each case,
shall be required for the Lenders or any of them to take any action hereunder,
(iii) reduce or limit the obligations of any Guarantor under Section 7.01 or
release such Guarantor or otherwise limit such Guarantor's liability with
respect to the Obligations owing to the Agents and the Lender Parties, (iv)
release all or substantially all of the Collateral in any transaction or series
of related transactions or permit the creation, incurrence, assumption or
existence of any Lien on all or substantially all of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to the Secured Parties under the Loan Documents, or (v)
amend Section 2.10 or this Section 9.01, and (b) no amendment, waiver or consent
shall, unless in writing and signed by the Required Lenders and each Lender
(other than any Lender that is, at such time, a Defaulting Lender) that has a
Commitment under any of the Facility if such Lender is directly affected by such
amendment, waiver or consent, (i) increase the Commitments of such Lender or
subject such Lender to any additional obligations, (ii) reduce the principal of,
or interest on, the Notes held by such Lender or any fees or other amounts
payable hereunder to such Lender or (iii) postpone any date fixed for any
payment of principal of, or interest on, the Notes held by such Lender or any
fees or other amounts payable hereunder to such Lender; and provided further
that no amendment, waiver or consent shall, unless in writing and signed by an
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of such Agent under this Agreement or the other Loan Documents.
SECTION 9.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered, if to
the Borrower, at its address at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇; if to any Amendment Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender
Party, at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; if to the Collateral Agent, at its
address at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, T: (▇▇▇) ▇▇▇-▇▇▇▇, F: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇; and if to the Administrative Agent, at its address at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, T:
(▇▇▇) ▇▇▇-▇▇▇▇, F: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇; or, as to any party,
at such other address as shall be designated by such party in a written notice
to the other parties. All such notices and
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communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively, except
that notices and communications to any Agent pursuant to Article II, III or VIII
shall not be effective until received by such Agent. Manual delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on demand
(i) all costs and expenses of each Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of the Loan
Documents (including, without limitation, (A) all due diligence, collateral
review, syndication, transportation, computer, duplication, appraisal, audit,
insurance, consultant, search, filing and recording fees and expenses and (B)
the reasonable fees and expenses of counsel for each Agent with respect thereto,
with respect to advising such Agent as to its rights and responsibilities, or
the perfection, protection or preservation of rights or interests, under the
Loan Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any
Default or any events or circumstances that may give rise to a Default and with
respect to presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding involving creditors' rights
generally and any proceeding ancillary thereto) and (ii) all costs and expenses
of each Agent and each Lender Party in connection with the enforcement of the
Loan Documents, whether in any action, suit or litigation, or any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally
(including, without limitation, the reasonable fees and expenses of counsel for
the Administrative Agent and each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each Agent, each
Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) any claims by third parties
involving (i) the Facilities, the actual or proposed use of the proceeds of the
Advances, the Loan Documents or any of the transactions contemplated thereby, or
(ii) the actual or alleged presence of Hazardous Materials on any property of
any Loan Party or any of its Subsidiaries or any Environmental Action relating
in any way to any Loan Party or any of its Subsidiaries, except to the extent
such claim, damage, loss, liability or expense results from such Indemnified
Party's gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated by
the Loan Documents are consummated. Each of the parties hereto also agrees not
to assert any claim against any other party hereto or any of
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their respective Affiliates, or any of their respective officers, directors,
employees, attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise relating
to the Facilities, the actual or proposed use of the proceeds of the Advances,
the Loan Documents or any of the transactions contemplated by the Loan
Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance is made by the Borrower to or for the account of a Lender Party other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.05, 2.08(b)(i) or 2.09(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or if the Borrower fails to make any payment or prepayment of an
Advance for which a notice of prepayment has been given or that is otherwise
required to be made, whether pursuant to Section 2.03, 2.05 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any loss (including loss of any
interest that, but for such failure, such Lender would have earned with respect
to such principal amount, reduced if such Lender Party is able to redeposit or
reinvest such principal amount, by interest earned by such Lender as a result of
such redeposit or reinvestment), cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender
Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Loan Document, the agreements and obligations
of the Borrower contained in Sections 2.09 and 2.10 and this Section 9.04 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise 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 Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
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SECTION 9.06. Binding Effect. This Agreement shall become effective when it
has been executed by the Borrower and each Agent, and the Administrative Agent
has been notified by the Required Lenders that each such Required Lender has
executed it, and thereafter this Agreement shall be binding upon and inure to
the benefit of the Borrower, each Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender, an Affiliate of
any Lender or an Approved Fund of any Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the aggregate amount of
the Commitments being assigned to such Eligible Assignee pursuant to such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 (or such
lesser amount as shall be approved by the Administrative Agent and, so long as
no Event of Default shall have occurred and be continuing at the time of
effectiveness of such assignment, the Borrower, such approval, in the case of
the Borrower, not to be unreasonably withheld), (ii) each such assignment shall
be to an Eligible Assignee, and (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment. No processing and recordation fee shall be
due.
(b) Upon such execution, delivery, consent, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (i)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender hereunder and (ii)
the Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights (other than its rights under Sections 2.09, 2.10 and 9.04
to the extent any claim thereunder relates to an event arising prior to such
assignment) and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all of the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender
Party assignor thereunder and each assignee thereunder confirm to and agree with
each other and the other parties thereto and hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender Party makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender Party makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
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Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any Agent, such assigning Lender Party or any other Lender Party
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assignment and Acceptance delivered to and accepted
by it.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it under each Facility pursuant
to such Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 or A-2 hereto, as the case may be.
(f) Each Lender Party may sell participations to one or more Persons (other
than any Loan Party or any of its Affiliates) in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitments, the Advances owing to it and the Note or Notes
(if any) held by it); provided, however, that (i) such Lender Party's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
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(g) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(h) Notwithstanding any other provision set forth in this Agreement, any
Lender Party may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 9.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Manual delivery of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of an original executed counterpart
of this Agreement.
SECTION 9.09. Confidentiality. Neither any Agent nor any Lender Party shall
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to such Agent's or such Lender Party's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, Federal or foreign authority or examiner
regulating such Lender Party, (d) to any rating agency when required by it,
provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the
Loan Parties received by it from such Lender Party and (e) to any direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor, provided that prior to such disclosure,
such contractual counterparty or professional advisor to such contractual
counterparty shall undertake to preserve the confidentiality of any Confidential
Information relating to the Loan Parties received by it from such Agent or
Lender Party.
SECTION 9.10. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto 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 County, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally
84
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted 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 any party
may otherwise have to bring any action or proceeding relating to this Agreement
or any of the other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that 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 any of the other Loan
Documents to which it is a party in any New York State or Federal court. 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.
SECTION 9.12. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 9.13. Waiver of Jury Trial. Each of the Guarantors, the Borrower,
the Agents and the Lender Parties irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to any of the Loan Documents, the Advances
or the actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
SECTION 9.14. Waiver and Consent. The Lender Parties hereby (i) irrevocably
waive any and all Defaults and Events of Default that may exist and be
continuing as of the Amendment Effective Date (including, without limitation,
any Default or Event of Default relating to the commencement or continuation of
the Chapter 11 Case) or that may occur as a result of the consummation of the
Reorganization Transactions or any transactions contemplated by the Plan of
Reorganization to occur after the effective date thereof, and irrevocably waive
any and all remedies and other rights they may have under this Agreement or any
other Loan Document or otherwise in respect of such Defaults and Events of
Defaults, and (ii) agree and consent to the consummation of each and every one
of the Reorganization Transactions, each and every other transaction
contemplated by the Plan of Reorganization to occur after the effective date
thereof and the Capital Lease Amendment notwithstanding that the consummation of
any such Reorganization Transaction, other transaction contemplated by the Plan
of Reorganization to occur after the effective date thereof, or the Capital
Lease Amendment may, in the absence of this Section 9.14, be deemed to violate
or breach, or conflict with, this Agreement or any other Loan Document or to
constitute a Default or an Event of Default under this Agreement or any other
Loan Document.
SECTION 9.15. Release of the Agent and the Lenders. Effective as of the
date hereof, the Borrower and the Subsidiary Guarantors hereby release each
Lender and each such Lender's direct and indirect stockholders and other
affiliates, officers, employees, directors and agents (collectively, the
"Releasees") from any and all claims, demands, liabilities, responsibilities,
disputes, causes of action (whether at law or in equity) and obligations of
every nature whatsoever, whether liquidated or unliquidated, known or unknown,
matured or unmatured, fixed or contingent that any of the Borrower or the
Subsidiary Guarantors may have against any Lender, arising from or relating to
any action or inactions of any Releasee on or prior to the date hereof with
respect to this Agreement, any other Loan Document, the Obligations, the
Collateral or any other property securing
85
the Obligations. For purposes of the release contained in this paragraph, the
term "Borrower" shall also include the Borrower's successors and assigns,
including, without limitation, any trustee, receiver or other representative
acting on behalf of the Borrower.
86
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
ITC/\ DELTACOM, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial
Officer
INTERSTATE FIBERNET, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial
Officer
ITC/\ DELTACOM COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial
Officer
DELTACOM INFORMATION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and Chief Financial
Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Administrative Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
as Collateral Agent
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Required Lenders
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
PW WILLOW FUND, L.L.C.
By Bond Street Capital LLC
By /s/ ▇▇▇ ▇. ▇▇▇
------------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇
Title: Managing Member
ELC (CAYMAN) LTD. 2000-1
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.,
as Collateral Manager
By /s/ ▇▇▇▇▇▇▇▇ [illegible]
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ [illegible]
Title: Managing Director
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Second Vice President and Associate
General Counsel
SUFFIELD CLO, LIMITED
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.,
as Collateral Manager
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇ CLO LTD. 2000-1
By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Company Inc.,
as Collateral Manager
By /s/ ▇▇▇▇▇▇▇▇ [illegible]
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇ [illegible]
Title: Managing Director
DB STRUCTURED PRODUCTS INC.
By Goldentree Asset Management, L.P., as Agent
By [Illegible]
--------------------------------------------
Title: Portfolio Manager
GOLDENTREE HIGH YIELD MASTER FUND, LTD.
By Goldentree Asset Management, L.P.
By [Illegible]
--------------------------------------------
Title: Portfolio Manager
GOLDENTREE HIGH YIELD OPPORTUNITIES I, L.P.
By Goldentree Asset Management, L.P.
By [Illegible]
--------------------------------------------
Title: Portfolio Manager
GOLDENTREE HIGH YIELD OPPORTUNITIES II, L.P.
By Goldentree Asset Management, L.P.
By [Illegible]
--------------------------------------------
Title: Portfolio Manager
IBM CREDIT CORPORATION
By /s/ ▇▇▇▇▇ [illegible]
--------------------------------------------
Name: ▇▇▇▇▇ [illegible]
Title: Manager Special Handling
ALLIANCE CAPIAL FUNDING, LLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
SANDKAY ADVISORS, LLC, as Collateral Manager for ▇▇▇▇▇ Point II CBO 2000-1 LTD.,
as Term Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
SANDKAY ADVISORS, LLC, as Collateral Manager for ▇▇▇▇▇ Point II CLO 1999-1 LTD.,
as Term Lender
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
SANDKATY HIGH YIELD ASSET PARTNERS III, L.P.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
SANDKATY HIGH YIELD ASSET PARTNERS, L.P.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
SANDKATY HIGH YIELD ASSET PARTNERS II, L.P.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
EXCEL BANK MINNESOTA
By /s/ [illegible]
--------------------------------------------
Name: [illegible]
Title: Vice President
OSPREY INVESTMENT PORTFOLIO
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
PACIFICA PARTNERS I, LP
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: Seam ▇. ▇▇▇▇▇▇
Title: Vice President
SANDLER ASSOCIATES LP
By /s/ [illegible]
--------------------------------------------
Name: illegible
Title: General Partner
SANDLER COMMUNICATIONS OFFSHORE FUND, INC.
By /s/ [illegible]
--------------------------------------------
Name: illegible
Title: Director
SANDLER ASSOCIATES II, LP
By /s/ [illegible]
--------------------------------------------
Name: illegible
Title: General Partner
TORONTO DOMINION (NEW YORK) INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ BANK
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
FERNWOOD ASSOCIATES, L.P. c/o INTERMARKET CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: General Partner
FIDELITY & GUARANTY LIFE INSURANCE COMPANY
By: ▇▇▇▇▇▇ Asset Management Company,
as investment advisor
By /s/ ▇▇▇▇▇▇ ▇. [illegible]
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. [illegible]
Title: Senior Vice President
MUZINICH CASHFLOW CBO LTD
By /s/ ▇▇▇▇▇▇ [illegible]
--------------------------------------------
Name: ▇▇▇▇▇▇ [illegible]
Title: Authorized Signatory
MUZINICH CASHFLOW CBO II LTD
By /s/ ▇▇▇▇▇▇ [illegible]
--------------------------------------------
Name: ▇▇▇▇▇▇ [illegible]
Title: Authorized Signatory
SCHEDULE I
APPLICABLE LENDING OFFICES
====================================== =============================== ===================================
Domestic Eurodollar
Lending Lending
Name of Lender Office Office
====================================== =============================== ===================================
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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