EXHIBIT 10.5
================================================================================
CREDIT AGREEMENT
dated as of
September 17, 1998
among
ADVANCED RADIO TELECOM CORP.,
The Lenders Party Hereto,
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent,
and
LUCENT TECHNOLOGIES INC.,
as Administrative Agent
================================================================================
[Reference No. 7725-029]
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms............................................ 1
SECTION 1.02. Classification of Loans and
Borrowings............................................... 31
SECTION 1.03. Terms Generally.......................................... 31
SECTION 1.04. Accounting Terms; GAAP................................... 32
ARTICLE II
The Loans
---------
SECTION 2.01. Tranche A Commitments.................................... 32
SECTION 2.02. Loans and Borrowings..................................... 33
SECTION 2.03. Requests for Borrowings.................................. 34
SECTION 2.04. Funding of Borrowings.................................... 35
SECTION 2.05. Interest Elections....................................... 36
SECTION 2.06. Termination and Reduction of
Commitments............................................ 38
SECTION 2.07. Repayment of Loans; Evidence of Debt..................... 38
SECTION 2.08. Amortization of Loans.................................... 39
SECTION 2.09. Prepayment of Loans...................................... 41
SECTION 2.10. Fees..................................................... 44
SECTION 2.11. Interest................................................. 44
SECTION 2.12. Alternate Rate of Interest............................... 46
SECTION 2.13. Increased Costs.......................................... 46
SECTION 2.14. Break Funding Payments; Prepayment
Fees................................................... 47
SECTION 2.15. Taxes.................................................... 48
SECTION 2.16. Payments Generally; Pro Rata
Treatment; Sharing of Set-Offs........................... 49
SECTION 2.17. Mitigation Obligations; Replacement
of Lenders............................................... 51
SECTION 2.18. Additional Loan Supplements.............................. 52
ARTICLE III
Representations and Warranties
------------------------------
SECTION 3.01. Organization; Powers..................................... 53
SECTION 3.02. Authorization; Enforceability............................ 53
SECTION 3.03. Governmental Approvals;
No Conflicts........................................... 53
SECTION 3.04. Financial Condition; No Material
Adverse Change........................................... 53
SECTION 3.05. Properties and Licenses.................................. 54
SECTION 3.06. Litigation and Environmental
Matters................................................ 55
SECTION 3.07. Compliance with Laws and Agreements...................... 55
SECTION 3.08. Investment and Holding Company
Status................................................. 55
SECTION 3.09. Taxes.................................................... 55
SECTION 3.10. ERISA.................................................... 56
SECTION 3.11. Disclosure............................................... 56
SECTION 3.12. Subsidiaries............................................. 56
SECTION 3.13. Insurance................................................ 56
SECTION 3.14. Labor Matters............................................ 56
SECTION 3.15. Purchase Agreement....................................... 57
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date........................................... 57
SECTION 4.02. Tranche A Full Availability Date......................... 60
SECTION 4.03. Each Borrowing........................................... 61
ARTICLE V
Affirmative Covenants
----------------------
SECTION 5.01. Financial Statements and Other
Information............................................ 61
SECTION 5.02. Notices of Material Events............................... 64
SECTION 5.03. Information Regarding Collateral......................... 64
SECTION 5.04. Existence; Conduct of Business........................... 65
SECTION 5.05. Payment of Obligations................................... 65
SECTION 5.06. Maintenance of Properties................................ 66
SECTION 5.07. Insurance................................................ 66
SECTION 5.08. Books and Records; Inspection
Rights................................................. 67
SECTION 5.09. Compliance with Laws and Agreements...................... 67
SECTION 5.10. Use of Proceeds.......................................... 67
SECTION 5.11. Further Assurances....................................... 68
SECTION 5.12. Casualty and Condemnation................................ 68
SECTION 5.13. Interest Rate Protection................................. 68
SECTION 5.14. FCC Licenses............................................. 69
ARTICLE VI
Negative Covenants
------------------
SECTION 6.01. Indebtedness............................................. 69
SECTION 6.02. Liens.................................................... 71
SECTION 6.03. Fundamental Changes...................................... 73
SECTION 6.04. Investments, Loans, Advances,
Guarantees and Acquisitions;
Asset Sales............................................ 73
SECTION 6.05. Hedging Agreements....................................... 76
SECTION 6.06. Restricted Payments...................................... 76
SECTION 6.07. Transactions with Affiliates............................. 77
SECTION 6.08. Restrictive Agreements................................... 77
SECTION 6.09. Repayment of Indebtedness................................ 77
SECTION 6.10. Intercompany Agreements.................................. 78
SECTION 6.11. Limitation on Sale-Leaseback
Transactions........................................... 78
SECTION 6.12. Restricted Subsidiaries.................................. 78
SECTION 6.13. FCC Licenses and License
Subsidiaries........................................... 79
SECTION 6.14. ERISA.................................................... 79
SECTION 6.15. Secured Indebtedness to Total
Capitalization......................................... 79
SECTION 6.16. Total Indebtedness to Total
Capitalization......................................... 80
SECTION 6.17. Senior Indebtedness to Consolidated
EBITDA................................................. 80
SECTION 6.18. Total Indebtedness to Consolidated
EBITDA................................................. 80
SECTION 6.19. Consolidated EBITDA to Consolidated
Debt Service........................................... 81
SECTION 6.20. Consolidated EBITDA to Consolidated
Cash Interest
Expense................................................. 82
SECTION 6.21. Minimum Revenues......................................... 82
SECTION 6.22. Minimum Buildings on Network............................. 83
SECTION 6.23. Minimum Customers........................................ 83
ARTICLE VII
Events of Default
-----------------
Events of Default................................................................. 83
ARTICLE VIII
The Agents
----------
The Agents........................................................................ 87
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices.................................................. 89
SECTION 9.02. Waivers; Amendments...................................... 90
SECTION 9.03. Expenses; Indemnity; Damage Waiver....................... 91
SECTION 9.04. Successors and Assigns................................... 93
SECTION 9.05. Survival................................................. 96
SECTION 9.06. Counterparts; Integration;
Effectiveness.......................................... 97
SECTION 9.07. Severability............................................. 97
SECTION 9.08. Right of Setoff.......................................... 97
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process.................................. 98
SECTION 9.10. WAIVER OF JURY TRIAL..................................... 99
SECTION 9.11. Headings................................................. 99
SECTION 9.12. Confidentiality.......................................... 99
SECTION 9.13. Interest Rate Limitation................................. 100
SCHEDULES:
---------
Schedule 2.01 -- Tranche A Commitments
Schedule 3.05 -- Licenses
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Permitted Asset Sales
Schedule 6.08 -- Existing Restrictions
Schedule 9.04 -- Certain Permitted Assignees
EXHIBITS:
--------
Exhibit A -- Form of Escrow Agreement
Exhibit B -- Form of Perfection Certificate
Exhibit C -- Form of Security Agreement
Exhibit D-1 -- Form of Opinion of Ropes & ▇▇▇▇
Exhibit D-2 -- Form of Opinion of Wiley, Rein & Fielding
Exhibit D-3 -- Form of Opinion of Cravath, Swaine & ▇▇▇▇▇
CREDIT AGREEMENT dated as of September 17, 1998, among
ADVANCED RADIO TELECOM CORP., a Delaware corporation, the LENDERS
party hereto, STATE STREET BANK AND TRUST COMPANY, as Collateral
Agent, and LUCENT TECHNOLOGIES INC., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Agreement, the
--------------
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
---
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Additional Assets" means any real property, improvements thereto,
-----------------
tangible personal property or FCC licenses owned by and used or useful in the
business of the Borrower and the Restricted Subsidiaries.
"Additional Commitment" means, with respect to each Lender, the
---------------------
commitment, if any, of such Lender to make Additional Loans of any Class,
expressed as an amount representing the maximum aggregate amount of the
Additional Loans of such Class to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06 and (b)
reduced or increased from time to time pursuant to Additional Loan Supplements
entered into by such Lender or assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Additional Commitment of any
Class will be set forth in the relevant Additional Loan Supplement, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Additional Commitment, as applicable.
"Additional Loan" means a loan made pursuant to an Additional Loan
---------------
Supplement.
"Additional Loan Supplement" means a supplement to this Agreement
--------------------------
entered into by the Borrower, the Administrative Agent and one or more Lenders,
as contemplated by Section 2.18, providing for (a) the
2
commitments of such Lender or Lenders to make loans pursuant to this Agreement,
(b) the maturity of, and scheduled repayment of, such loans, (c) the interest
rates applicable to such loans, (d) any fees payable by the Borrower in respect
of such commitments or loans and (e) any other terms and conditions (not
inconsistent with the terms and conditions set forth in this Agreement)
applicable to such commitments or loans. Each Additional Loan Supplement shall
designate the Class of the commitments and loans provided for therein.
"Adjusted Consolidated Net Tangible Assets" means the total amount of
-----------------------------------------
assets of the Borrower and its Restricted Subsidiaries (less applicable
depreciation, amortization and other valuation reserves), except to the extent
resulting from write-ups of capital assets (excluding write-ups in connection
with accounting for acquisitions in accordance with GAAP), after deducting
therefrom (a) all current liabilities of the Borrower and its Restricted
Subsidiaries (excluding intercompany items) and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles (other than FCC Licenses), all as set forth on the quarterly or
annual consolidated balance sheet of the Borrower and its Restricted
Subsidiaries, prepared in accordance with GAAP and most recently delivered to
the Lenders pursuant to Section 5.01(a) or (b); provided that the value of any
--------
FCC Licenses shall, in the event of an auction for similar licenses, be equal to
the fair market value ascribed thereto in good faith by the Board of Directors
of the Borrower and evidenced by a resolution of such board.
"Adjusted LIBO Rate" means, with respect to any LIBOR Borrowing for
------------------
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Lucent, in its capacity as administrative
--------------------
agent for the Lenders hereunder.
"Administrative Questionnaire" means an administrative questionnaire
----------------------------
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
---------
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
3
"Agents" means the Administrative Agent and the Collateral Agent.
------
"Aggregate Capital" means, as of any date, the aggregate amount of Net
-----------------
Proceeds received by the Borrower after April 27, 1998, and on or prior to such
date from contributions of equity capital and issuance of Other Debt.
"Alternate Base Rate" means, for any day, a rate per annum equal to
-------------------
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Rate" means, for any day, with respect to any Tranche A
---------------
Loan, the applicable rate per annum set forth below under the caption "ABR
Spread" or "Eurodollar Spread", as the case may be, based on the Leverage Ratio
as of the most recent determination date; provided that after the date that the
--------
Aggregate Capital exceeds $350,000,000, 1.00% shall be subtracted from the
applicable spreads set forth below:
==============================================================================================
Leverage Ratio ABR Spread Eurodollar Spread
-------------- ---------- -----------------
----------------------------------------------------------------------------------------------
Category 1 less than 4.0 to 1.0 3.00% 4.00%
----------------------------------------------------------------------------------------------
Category 2 greater than or equal to 3.25% 4.25%
4.0 to 1.0 but less than
6.0 to 1.0
----------------------------------------------------------------------------------------------
Category 3 greater than or equal to 3.50% 4.50%
6.0 to 1.0 but less than
10.0 to 1.0
----------------------------------------------------------------------------------------------
Category 4 greater than or equal to 4.00% 5.00%
10.0 to 1.0
===============================================================================================
For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of
the end of each fiscal quarter of the Borrower's fiscal year based upon the
Borrower's consolidated financial statements delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that
--------
the Leverage Ratio shall be deemed to be in Category 4 (A) at any time that an
Event of Default has occurred and is
4
continuing or (B) if the Borrower fails to deliver the consolidated financial
statements required to be delivered by it pursuant to Section 5.01(a) or (b)
within the period specified therein for delivery thereof, during the period from
the expiration of the period specified therein for delivery thereof until such
consolidated financial statements are delivered.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in a form
approved by the Administrative Agent.
"Board" means the Board of Governors of the Federal Reserve System of
-----
the United States of America.
"Borrower" means Advanced Radio Telecom Corp., a Delaware corporation.
--------
"Borrowing" means a Loan or group of Loans of the same Class and Type,
---------
made, converted or continued on the same date and, in the case of LIBOR Loans,
as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
-----------------
accordance with Section 2.03.
"Bridge Loans" means loans outstanding under the Bridge Note.
------------
"Bridge Note" means the promissory note dated June 10, 1998, issued by
-----------
the Borrower to Lucent.
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a LIBOR Loan, the
--------
term "Business Day" shall also exclude any day on which banks are not open for
------------
dealings in dollar deposits in the London interbank market.
"Business Plan" means, for any fiscal year, the business plan of the
-------------
Borrower and the Restricted Subsidiaries for such fiscal year.
"Capital Expenditures" means, for any period, (a) the additions to
--------------------
property, plant and equipment and other capital expenditures of the Borrower and
its Restricted Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower for
5
such period prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by the Borrower and its Restricted Subsidiaries during such period.
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
-----------------
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 35% of the aggregate ordinary voting power represented by
the issued and outstanding capital stock of the Borrower; or (b) occupation of a
majority of the seats (other than vacant seats) on the Board of Directors of the
Borrower by Persons who were neither (i) nominated by the Board of Directors of
the Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
-------------
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender (or, for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
-----
whether such Loan, or the Loans comprising such Borrowing, are Tranche A Loans
or Additional Loans of a particular Class and, when used in reference to any
Commitment, refers to whether such Commitment is a Tranche A Commitment or an
Additional Commitment of a particular Class. The designation of Classes of
Additional Loans and Additional Commitments shall be specified in the applicable
Additional Loan Supplements.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
6
"Collateral" means any and all "Collateral", as defined in the
----------
Security Agreement.
"Collateral Agent" means State Street Bank and Trust Company in its
----------------
capacity as collateral agent for the Secured Parties (as defined in the Security
Agreement) under the Security Agreement.
"Collateral Cost" means, with respect to any property or asset, the
---------------
portion of the Purchase Price attributable to such property or asset, determined
by reference to Lucent's invoice therefor, disregarding amounts attributable to
services, installation, other intangibles and sales taxes.
"Collateral Prepayment Amount" means, with respect to any Collateral
----------------------------
Trigger Event:
(a) in the case of a Collateral Trigger Event referred to in clause
(a) of the definition of the term "Collateral Trigger Event", an amount
equal to the Net Proceeds of such Collateral Trigger Event (determined
without giving effect to clause (b)(ii) of the definition of the term "Net
Proceeds"); or
(b) in the case of a Collateral Trigger Event referred to in clause
(b) of the definition of the term "Collateral Trigger Event", an amount
equal to the replacement cost, at the time of such Collateral Trigger
Event, of properties or assets of the same model and type as the properties
or assets affected by such Collateral Trigger Event;
provided that if, at the time of and after giving effect to the applicable
--------
Collateral Trigger Event, the total Collateral Cost of all properties and assets
that have been the subject of Collateral Trigger Events exceeds 25% of the total
Collateral Cost of all properties and assets that constitute or previously
constituted Collateral (including properties and assets that have ceased to
constitute Collateral as a result of Collateral Trigger Events), then the
"Collateral Prepayment Amount" shall be an amount equal to the product of (i)
the sum of the aggregate principal amount of the Loans outstanding at the time
plus all Deferred Interest thereon, multiplied by (ii) a fraction, the numerator
of which shall be the total Collateral Cost of the properties or assets that are
the subject of the applicable Collateral Trigger Event, and the denominator of
which shall be the total Collateral Cost of all properties and assets
constituting Collateral immediately prior to such Collateral Trigger Event;
provided further that if a
----------------
7
Collateral Trigger Event occurs and if the Borrower has replaced the affected
property or asset, or purchased additional property or assets constituting
Collateral, as contemplated by the proviso to the definition of "Collateral
Trigger Event", but the property or assets so acquired do not have a value
equivalent to or greater than the property or asset that was the subject of such
Collateral Trigger Event, then the "Collateral Prepayment Amount" in respect of
such Collateral Trigger Event shall be reduced by an amount equal to the
Collateral Cost of the property or assets so acquired.
"Collateral Trigger Event" means:
------------------------
(a) any direct or indirect sale, transfer or other disposition
(including pursuant to a sale and leaseback transaction) of any property or
asset constituting Collateral; or
(b) any casualty or other damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any property or
asset constituting Collateral;
provided that an event referred to in clause (a) or (b) above shall not
--------
constitute a "Collateral Trigger Event" if (i) the Borrower elects to repair,
restore or replace the affected property or asset, or to purchase additional
property or assets, as promptly as practicable, but in any event within 180
days, after receipt of the Net Proceeds of such event in accordance with the
requirements of this proviso (and the Borrower shall be deemed to have so
elected unless the Borrower notifies the Administrative Agent that it intends to
prepay Borrowings with the Net Proceeds of such event within three Business Days
after receipt of the Net Proceeds of such event), (ii) all Net Proceeds from
such event are deposited with the Collateral Agent to be held as cash collateral
pursuant to the Security Agreement, subject to release to pay the costs of such
repair, restoration, replacement or purchase as and when due, (iii) the Borrower
promptly commences and diligently pursues such repair, restoration, replacement
or purchase and (iv) in the case of a replacement or purchase, each property or
asset acquired pursuant to such replacement or purchase (A) is acquired by the
Borrower pursuant to the Purchase Agreement, (B) has a value equivalent to or
greater than the property or asset that was the subject of the applicable event
(prior to giving effect to the applicable event), (C) becomes Collateral
effective upon such replacement or purchase, free and clear of all Liens (other
than the Lien of the Security Agreement), and (D) is not financed with any
Borrowings
8
hereunder (except to the extent the purchase price thereof exceeds the greater
of (i) the Collateral Cost of the property or asset subject to such event and
(ii) the Net Proceeds of such event); provided further that, if at the
----------------
expiration of the 180-day period commencing on the date of receipt of the Net
Proceeds of such event the Borrower has not completed the repair, restoration or
replacement of the affected property or asset or purchased additional property
or assets constituting Collateral in accordance with all the requirements of the
foregoing proviso, then a "Collateral Trigger Event" shall be deemed to have
occurred at the expiration of such 180-day period; provided further that such
----------------
180-day period shall be extended by an additional 90 days to the extent that the
Borrower has issued binding purchase orders with respect to the purchase of
additional property or assets constituting Collateral by the expiration of such
180-day period.
"Commitment" means a Tranche A Commitment or an Additional Commitment,
----------
or any combination thereof (as the context requires).
"Consolidated Cash Interest Expense" means, for any period,
----------------------------------
Consolidated Interest Expense for such period, less (i) any interest on
Indebtedness outstanding under the Indenture paid in cash during such period out
of the escrow account established for such purpose, (ii) any amortization of
capitalized fees and expenses included in Consolidated Interest Expense for such
period, (iii) any amortization of original issue discount included in interest
expense for such period and (iv) any Deferred Interest or other interest
deferred or paid in kind and included in Consolidated Interest Expense for such
period.
"Consolidated Debt Service" means, for any period, Consolidated Cash
-------------------------
Interest Expense for such period plus any scheduled payments of principal of
Indebtedness of the Borrower and the Restricted Subsidiaries during such period.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
-------------------
for such period (adjusted to exclude all extraordinary items), plus, without
duplication and to the extent deducted from revenues in determining Consolidated
Net Income, the sum of (a) the aggregate amount of Consolidated Interest Expense
for such period, (b) the aggregate amount of income tax expense for such period,
(c) all amounts attributable to depreciation and amortization for such period
and (d) all other non-cash adjustments to depreciable assets for such period,
minus, without duplication and to the extent added to revenues in determining
Consolidated Net Income, all non-cash
9
adjustments to depreciable assets for such period, all as determined on a
consolidated basis with respect to the Borrower and the Restricted Subsidiaries
in accordance with GAAP.
"Consolidated Indebtedness" means, as of any date of determination,
-------------------------
the aggregate principal amount of Indebtedness of the Borrower and the
Restricted Subsidiaries outstanding as of such date (including Indebtedness of
Unrestricted Subsidiaries to the extent Guaranteed by the Borrower or any
Restricted Subsidiary), which shall be net of all cash held in escrow for the
satisfaction of such Indebtedness as of such date, determined on a consolidated
basis in accordance with GAAP; provided that, for purposes of this definition,
--------
the term "Indebtedness" shall exclude obligations as an account party in respect
of letters of credit to the extent that such letters of credit have not been
drawn upon.
"Consolidated Interest Expense" means, for any period, the interest
-----------------------------
expense, both expensed and capitalized (including the interest component in
respect of Capital Lease Obligations and any financing expenses), accrued by the
Borrower and the Restricted Subsidiaries during such period, determined on a
consolidated basis in accordance with GAAP; provided that interest expense of an
--------
Unrestricted Subsidiary shall be deemed to be interest expense of the Borrower
to the extent such interest expense relates to Indebtedness Guaranteed by the
Borrower or a Restricted Subsidiary.
"Consolidated Net Income" means, for any period, net income or loss of
-----------------------
the Borrower and the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
--------
excluded (a) the income of any Person in which any other Person (other than the
Borrower or any Restricted Subsidiary or any director holding qualifying shares
in compliance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions (including distributions made as
a return of capital or repayment of principal of advances) actually paid to the
Borrower or any Restricted Subsidiary by such Person, (b) the income of any
Unrestricted Subsidiary, except to the extent of the amount of dividends or
other distributions (including distributions made as a return of capital or
repayment of principal of advances) actually paid to the Borrower or any
Restricted Subsidiary by such Unrestricted Subsidiary during such period, and
(c) the income (or loss) of any Person accrued prior to the date it becomes a
Restricted Subsidiary or is merged into or consolidated with the Borrower or any
10
Restricted Subsidiary or the date such Person's assets are acquired by the
Borrower or any Restricted Subsidiary.
"Contributed Capital" means, as of any date of determination, the
-------------------
amount of paid-in capital of the Borrower as of such date, including equity
issued for cash and noncash consideration, determined on a consolidated basis in
accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power
-------
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
----------- ----------
"Default" means any event or condition which constitutes an Event of
-------
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Deferred Interest" means any interest on any Loan, or any interest on
-----------------
any Deferred Interest on such Loan, that is deferred rather than paid when due
as provided in (a) clause (iv) of Section 2.11(d), in the case of Tranche A
Loans, or (b) the applicable Additional Loan Supplement, in the case of
Additional Loans of any Class that expressly provides for deferral of interest.
Deferred Interest on any Loan shall continue to constitute interest on (and not
principal of) such Loan for all purposes hereof, including for purposes of
determining a Lender's remaining Tranche A Commitment pursuant to Section 2.01
hereof and the amount of Additional Loans pursuant to Section 2.18 hereof.
"Disclosed Matters" means the actions, suits and proceedings and the
-----------------
environmental matters disclosed in Schedule 3.06.
"Disqualified Stock" means any capital stock of the Borrower which by
------------------
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable) or upon the happening of any event (i)
matures or is mandatorily redeemable pursuant to a sinking fund obligation or
otherwise, (ii) is convertible or exchangeable for Indebtedness or Disqualified
Stock, (iii) requires the payment of dividends other than dividends payable
solely in additional shares of capital stock of the Borrower (other than
Disqualified Stock) or (iv) is redeemable or subject to required repurchase at
the option of the holder thereof, in whole or in part, in each case on
11
or prior to the second anniversary of the latest Maturity Date.
"dollars" or "$" refers to lawful money of the United States of
------- -
America.
"Effective Date" means the date on which the conditions specified in
--------------
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
------------------
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
-----------------------
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
-----------
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of
12
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Escrow Agreement" means the Escrow Agreement between the Borrower,
----------------
the Administrative Agent and the Collateral Agent, substantially in the form of
Exhibit A.
"Event of Default" has the meaning assigned to such term in Article
----------------
VII.
"Excess Cash Flow" means, for any fiscal year of the Borrower, the sum
----------------
(without duplication) of:
(a) the consolidated net income (or loss) of the Borrower and its
Restricted Subsidiaries for such fiscal year, adjusted to exclude any gains
or losses attributable to Prepayment Events or Collateral Trigger Events;
plus
----
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such consolidated net income (or loss) for such
fiscal year (including Deferred Interest and any other interest expense
accrued for such fiscal year that is not payable currently in cash); plus
----
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the amount, if any, by which
the consolidated deferred revenues of the Borrower and its Restricted
Subsidiaries increased during such fiscal year plus (iii) the aggregate
principal amount of Capital Lease Obligations and other Indebtedness
incurred by the Borrower or any of its Restricted Subsidiaries during such
fiscal year to finance Capital Expenditures, to
13
the extent that principal payments in respect of such Indebtedness would
not be excluded from clause (f) below when made; minus
-----
(d) the sum of (i) any non-cash gains included in determining such
consolidated net income (or loss) for such fiscal year plus (ii) the
amount, if any, by which Net Working Capital increased during such fiscal
year plus (iii) the amount, if any, by which the consolidated deferred
revenues of the Borrower and its consolidated Subsidiaries decreased during
such fiscal year; minus
-----
(e) the excess, if any, of (i) the sum of (A) Capital Expenditures for
such fiscal year, plus (B) Capital Expenditures that the Borrower expects
to make in the next fiscal year (excluding any such Capital Expenditures
that are expected to be financed pursuant to Capital Lease Obligations or
other Indebtedness) in an amount not to exceed (I) with respect to the
fiscal year during which the Tranche A Availability Termination Date
occurs, $15,000,000, and (II) with respect to each fiscal year thereafter,
100% of Capital Expenditures (excluding any such Capital Expenditures that
were financed pursuant to Capital Lease Obligations or other Indebtedness)
made in the previous fiscal year, over (ii) the amount, if any, of Capital
Expenditures deducted in calculating Excess Cash Flow for any previous
fiscal year pursuant to sub-clause (i) (B) of this clause (e), to the
extent that an adjustment pursuant to this sub-clause (ii) has not yet been
made in respect of such previous deduction; minus
-----
(f) the aggregate principal amount of Indebtedness, and the aggregate
amount of Deferred Interest, repaid or prepaid by the Borrower and its
Restricted Subsidiaries during such period, excluding (i) Loans and
Deferred Interest prepaid pursuant to Section 2.09(b), (c) or (d), (ii)
repayments or prepayments of Indebtedness financed by incurring other
Indebtedness, to the extent that mandatory principal payments in respect of
such other Indebtedness would not be excluded from this clause (f) when
made and (iii) Indebtedness referred to in clause (i) of Section 6.01.
"Excluded Taxes" means, with respect to either Agent, any Lender or
--------------
any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) income or franchise taxes imposed on (or
14
measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), any withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party to this Agreement
(or designates a new lending office) or is attributable to such Foreign Lender's
failure to comply with Section 2.15(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.15(a).
"FCC" means the Federal Communications Commission.
---
"FCC License" means any license granted by the FCC to the Borrower or
-----------
any Restricted Subsidiary.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) 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 Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"GAAP" means, subject to Section 1.04(b), generally accepted
----
accounting principles in the United States of America.
15
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
-------------------
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to advances of any
kind, (b) all obligations of such Person evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations of such Person under conditional
sale or other title retention
16
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Indenture" means the Indenture dated as of February 6, 1997, between
---------
the Borrower and The Bank of New York, as trustee.
"Initial Loan Limit" means $10,000,000.
------------------
"Intercompany Agreements" has the meaning set forth in paragraph (m)
-----------------------
of Section 4.01.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
---------------------
last day of each March, June, September and December and (b) with respect to any
LIBOR Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a LIBOR Borrowing with an Interest
Period of more than three months' duration, each day prior to the last day of
such Interest Period that occurs at intervals of three months' duration after
the first day of such Interest Period.
"Interest Period" means, with respect to any LIBOR Borrowing, the
---------------
period commencing on the date of such
17
Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that (a) if any Interest Period would end on a day other than a
--------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (b) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on which
such Borrowing is made and thereafter shall be the effective date of the most
recent conversion or continuation of such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01, the Persons that
-------
make Additional Commitments pursuant to any Additional Loan Supplements as
specified therein and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any such Person (a) that
ceases to be a party hereto pursuant to an Assignment and Acceptance or (b)
whose Commitments have terminated and whose Loans, and all interest thereon,
have been repaid.
"Leverage Ratio" means, on any date, the ratio of (a) Consolidated
--------------
Indebtedness as of such date to (b) 200% of Consolidated EBITDA for the period
of two consecutive fiscal quarters of the Borrower ended on such date or, if
such date is not the last day of a fiscal quarter, ended on the last day of the
fiscal quarter of the Borrower most recently ended prior to such date.
"LIBOR", when used in reference to any Loan or Borrowing, refers to
-----
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"LIBO Rate" means, with respect to any LIBOR Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank
18
market) at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
LIBOR Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent (or, if the
Administrative Agent at the time is not a commercial bank, any commercial bank
based in New York City selected by the Administrative Agent for the purpose of
quoting such rate, provided that such commercial bank has a combined capital and
surplus and undivided profits of not less than $500,000,000) in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.
"License Subsidiary" has the meaning assigned to such term in Section
------------------
6.13.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement (including any Additional Loan
--------------
Supplements), the Working Capital Credit Agreement, the Escrow Agreement and the
Security Agreement.
"Loan Parties" means the Borrower and the Restricted Subsidiaries.
------------
"Loans" means Tranche A Loans and Additional Loans.
-----
"Lucent" means Lucent Technologies Inc.
------
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and the Restricted Subsidiaries taken as a whole, (b)
the ability of the Borrower to perform any of its material obligations under any
Loan Document or (c) the
19
rights of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans), or
---------------------
obligations in respect of one or more Hedging Agreements, of any one or more of
the Loan Parties in an aggregate principal amount exceeding $10,000,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of a Loan Party in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that such Loan Party would be required to pay if such Hedging Agreement were
terminated at such time.
"Maturity Date" means (a) in respect of the Tranche A Loans, the
-------------
Tranche A Maturity Date, or (b) in respect of the Additional Loans of any Class,
the maturity date in respect of such Additional Loans as specified in the
applicable Additional Loan Supplement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
------------
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
fees and out-of-pocket expenses paid by the Borrower and the Restricted
Subsidiaries to third parties in connection with such event, (ii) in the case of
a sale or other disposition of an asset (including pursuant to a casualty or
condemnation), the amount of all payments required to be made by the Borrower
and the Restricted Subsidiaries as a result of such event to repay Indebtedness
(other than Loans) secured by such asset or otherwise subject to mandatory
prepayment as a result of such event, and (iii) the amount of all taxes paid (or
reasonably estimated to be payable) by the Borrower and the Restricted
Subsidiaries, and the amount of any reserves established by the Borrower and the
Restricted Subsidiaries to fund contingent liabilities reasonably estimated to
be payable, in each case during the year that such event occurred or the next
succeeding year and that are directly attributable to such event (as determined
reasonably and in good faith by the chief financial officer of the Borrower).
20
"Net Working Capital" means, at any date, (a) the consolidated current
-------------------
assets of the Borrower and its Restricted Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the consolidated current
liabilities of the Borrower and its Restricted Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness), determined on a
consolidated basis in accordance with GAAP. Net Working Capital at any date may
be a positive or negative number. Net Working Capital increases when it becomes
more positive or less negative and decreases when it becomes less positive or
more negative.
"Network" means (a) the nationwide, wireless, broadband data network
-------
contemplated to be purchased by the Borrower from Lucent pursuant to the
Purchase Agreement or (b) the portion thereof theretofore purchased by the
Borrower, as the context requires.
"Non-Recourse Debt" means Indebtedness (a) as to which neither the
-----------------
Borrower nor any of the Restricted Subsidiaries (i) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) or (ii) is directly or indirectly liable (pursuant to a
Guarantee or otherwise); (b) no default with respect to which (including any
rights that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness (other than the Loans) of the Borrower or any
of the Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its stated
maturity; and (c) as to which the lender or lenders of any indebtedness for
borrowed money in an aggregate amount in excess of $5,000,000 has been notified
in writing that such lender shall not have any recourse to the stock or assets
of the Borrower or any of the Restricted Subsidiaries.
"Obligations" has the meaning assigned to such term in the Security
-----------
Agreement.
"Other Debt" means (a) Indebtedness in respect of debt securities
----------
issued by the Borrower pursuant to a public offering registered with the
Securities and Exchange Commission or pursuant to a private placement made in
accordance with Rule 144A under the Securities Act of 1933 and in any event (i)
which are unsecured, (ii) which mature after the latest Maturity Date
established in respect of any Loans provided for herein or in any Additional
Loan Supplement at the time such debt securities are issued, (iii) which do not
require any scheduled repayments of
21
principal prior to maturity, (iv) which are not Guaranteed by any Subsidiary and
(v) the other terms and conditions of which are customary market terms for debt
securities issued by companies of comparable credit quality in the same market
and (b) Indebtedness in respect of debt securities issued by the Borrower
pursuant to a private placement to institutional investors made in reliance on
Section 4(2) of the Securities Act of 1933, satisfying the conditions set forth
in clauses (a)(i) through (a)(iv) above and having other terms and conditions
which are reasonably satisfactory to the Required Lenders.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit B
----------------------
or any other form approved by the Collateral Agent.
"Permitted Acquisition" means any acquisition of all or substantially
---------------------
all the assets of, or shares or other equity interests in, a Person or division
or line of business of a Person if, immediately after giving effect thereto, (a)
no Default has occurred and is continuing or would result therefrom, (b) all
transactions related thereto are consummated in accordance with applicable laws,
(c) in the case of an acquisition of shares or other equity interests in a
Person, such acquisition results in such Person being merged with and into the
Borrower or a wholly owned Restricted Subsidiary or becoming a wholly owned
Restricted Subsidiary of the Borrower, (d) the Borrower and the Restricted
Subsidiaries are in compliance, on a pro forma basis after giving effect to such
acquisition, with the covenants contained in Sections 6.15, 6.16, 6.17, 6.18,
6.19 and 6.20 recomputed as of the last day of the most recently ended fiscal
quarter of the Borrower for which financial statements are available as if such
acquisition had occurred on the first day of each relevant period for testing
such compliance, (e) the consideration for such acquisition shall consist solely
of common stock or Permitted Preferred Stock of the Borrower, cash, Indebtedness
of the Borrower or a Restricted Subsidiary, or a combination of the foregoing,
(f) after giving effect to
22
such acquisition, the aggregate amount of cash consideration paid in connection
with all acquisitions constituting "Permitted Acquisitions", plus the aggregate
principal amount of all Indebtedness issued as consideration in connection
therewith and all Indebtedness incurred, assumed or otherwise resulting from
such acquisitions, shall not exceed the sum of (i) $20,000,000, (ii) the
aggregate Net Proceeds received by the Borrower from contributions of equity
capital subsequent to the date hereof and (iii) 50% of Excess Cash Flow for each
fiscal year of the Borrower, commencing with the fiscal year during which the
Tranche A Availability Termination Date occurs, and (g) the Borrower has
delivered to the Administrative Agent an officer's certificate to the effect set
forth in clauses (a) through (f) above, together with all relevant financial
information for the business or entity being acquired.
"Permitted Assignment" means (a) any assignment to Lucent or any
--------------------
Affiliate of Lucent, (b) any assignment to any existing Lender or any Affiliate
thereof or (c) any assignment to a Person listed on Schedule 9.04 or any
Affiliate of any such Person.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes, fees, assessments or other
governmental charges that are not yet due or are being contested in
compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', landlords', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 60 days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
23
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Restricted
Subsidiary; and
(g) bankers' rights of setoff and other like Liens imposed by law;
provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(e) shares of any mutual fund the investment guidelines of which
restrict such fund's investments to those closely resembling the criteria
set forth in any one or more of clauses (a) through (d) above; provided
--------
24
such fund has total assets of not less than $1,000,000,000.
"Permitted Preferred Stock" means capital stock of the Borrower (other
-------------------------
than Disqualified Stock) of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of the Borrower,
over shares of capital stock of any other class of the Borrower.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prepayment Event" means:
----------------
(a) any direct or indirect sale, transfer or other disposition (other
than a sale of FCC Licenses pursuant to the exercise of the option granted
by the Borrower to Commco, L.L.C. pursuant to the Option Agreement dated as
of July 3, 1996) after the Tranche A Full Availability Date (including
pursuant to a sale and leaseback transaction) of any property or asset
(other than Collateral) of the Borrower or any Restricted Subsidiary (other
than dispositions described in clauses (i), (ii) and (iii) of Section
6.04(b)); or
(b) any casualty or other damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any property or
asset (other than Collateral) of the Borrower or any Restricted Subsidiary
after the Tranche A Full Availability Date;
provided that (i) any such event, or combination of related events, involving
--------
Net Proceeds of less than $500,000 shall not constitute a "Prepayment Event",
(ii) any such event referred to in clause (a) above shall not constitute a
"Prepayment Event" if (A) the Borrower elects to reinvest the Net Proceeds of
such event in Additional Assets as promptly as practicable, but in any event
within 180 days, after the receipt of the Net Proceeds of such event (and the
25
Borrower shall be deemed to have so elected unless the Borrower notifies the
Administrative Agent that it intends to prepay Borrowings with the Net Proceeds
of such event within three Business Days after receipt of the Net Proceeds of
such event) and (B) all Net Proceeds from such event (and any related events) in
excess of $1,000,000 are escrowed pursuant to the Escrow Agreement, and (iii)
any such event referred to in clause (b) above shall not constitute a
"Prepayment Event" if (A) the Borrower elects to apply the Net Proceeds of such
event to repair, restore or replace the affected property or asset or to
reinvest such Net Proceeds in Additional Assets as promptly as practicable, but
in any event within 180 days, after the receipt of the Net Proceeds of such
event (and the Borrower shall be deemed to have so elected unless the Borrower
notifies the Administrative Agent that it intends to prepay Borrowings with the
Net Proceeds of such event within three Business Days of such event), and (B)
all Net Proceeds from such event (and any related events) in excess of
$1,000,000 are escrowed pursuant to the Escrow Agreement; provided further that,
----------------
if at the expiration of the 180-day period referred to in clause (ii) or (iii)
above less than all the Net Proceeds of such event have been reinvested or
applied as provided therein, then a "Prepayment Event" shall be deemed to have
occurred at the expiration of such 180-day period with Net Proceeds equal to the
Net Proceeds that have not been so reinvested or applied; provided further that
----------------
the 180-day period referred to in clause (ii) above shall be extended by the
length of any FCC review period to the extent that the Borrower has entered into
a binding commitment to purchase FCC Licenses by the expiration of such 180-day
period.
"Prime Rate" means the rate of interest per annum published from time
----------
to time in the "Money Rates" column (or any successor column) of The Wall Street
Journal as the prime rate or, if such rate shall cease to be so published or is
not available for any reason, the rate of interest publicly announced from time
to time by any commercial bank based in New York City selected by the
Administrative Agent for the purpose of quoting such rate, provided such
commercial bank has a combined capital and surplus and undivided profits of not
less than $500,000,000. Each change in the Prime Rate shall be effective from
and including the date such change is published.
"Purchase Agreement" means the Purchase Agreement dated April 24,
------------------
1998, as amended and restated as of July 24, 1998, between Lucent and the
Borrower.
"Purchase Price" means the "Purchase Price", as defined in the
--------------
Purchase Agreement.
26
"Register" has the meaning set forth in Section 9.04.
--------
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Repayment" means, in respect of any Indebtedness, the direct or
---------
indirect repayment, prepayment, redemption, purchase, acquisition, defeasance,
retirement or other satisfaction of the principal of such Indebtedness, in whole
or in part, whether optional or mandatory. "Repay" has a meaning correlative
-----
thereto.
"Required Lenders" means, at any time, Lenders having outstanding
----------------
Loans, Deferred Interest and Commitments representing more than 50% of the sum
of the total outstanding Loans, Deferred Interest and Commitments at such time;
provided that at any time that Lucent and its Affiliates, if any, who are
--------
Lenders have outstanding Loans, Deferred Interest and Commitments representing
more than 50% of the sum of all outstanding Loans, Deferred Interest and
Commitments at such time, and all other Lenders taken together have more than
35% of all such outstanding Loans, Deferred Interest and Commitments, "Required
Lenders" means each of (i) Lucent and such Affiliates who are Lenders at such
time and (ii) other Lenders holding more than 50% of the outstanding Loans,
Deferred Interest and Commitments (excluding those held by Lucent and such
Affiliates of Lucent) at such time; provided further that, if at the time of and
----------------
immediately prior to giving effect to any Additional Loan Supplement all Lenders
other than Lucent and its Affiliates have more than 35% of all outstanding
Loans, Deferred Interest and Commitments, and if after giving effect to such
Additional Loan Supplement Lucent and its Affiliates, if any, who are Lenders
will have Loans, Deferred Interest and Commitments representing more than 50% of
the sum of all outstanding Loans, Deferred Interest and Commitments, then the
"Required Lenders" shall be determined in accordance with the immediately
preceding proviso until Lucent and its affiliates who are Lenders cease to have
more than 50% of the sum of all outstanding Loans, Deferred Interest and
Commitments.
"Restricted Payment" means (a) any dividend or other distribution
------------------
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower or any Restricted Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of
27
the purchase, redemption, retirement, acquisition, cancelation or termination of
any shares of any class of capital stock of the Borrower or any Restricted
Subsidiary or any option, warrant or other right to acquire any such shares of
capital stock of the Borrower or any Restricted Subsidiary or (b) any Repayment
in respect of any Subordinated Indebtedness.
"Restricted Subsidiary" means any Subsidiary that is not an
---------------------
Unrestricted Subsidiary.
"S&P" means Standard & Poor's.
---
"Secured Indebtedness" means any Indebtedness of the Borrower or any
--------------------
Restricted Subsidiary (other than Indebtedness outstanding under the Indenture)
to the extent secured by a Lien on any asset of the Borrower or any Subsidiary.
"Security Agreement" means the Security Agreement between the Borrower
------------------
and the Collateral Agent, substantially in the form of Exhibit C.
"Senior Indebtedness" means the principal of, but not premium (if any)
-------------------
and accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization of the Borrower,
regardless of whether or not a claim for post-petition filing interest is
allowed in such proceedings) on, or fees, expenses, indemnity and reimbursement
obligations and other amounts owing in respect of, all Indebtedness of the
Borrower and the Restricted Subsidiaries for borrowed money, unless in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding it is provided that such obligations are not superior or pari passu
in right of payment to the Obligations.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which any commercial banks subject to regulation by
the Board are subject with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for
28
proration, exemptions or offsets that may be available from time to time to any
Lender under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Subordinated Indebtedness" means any Indebtedness of the Borrower
-------------------------
that is, by its terms, subordinated in right of payment to the payment of any of
the Obligations and the Loans (as defined in the Working Capital Credit
Agreement).
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
----------
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Telecommunications Assets" means all assets (including FCC Licenses
-------------------------
and assets consisting of subscribers), rights (contractual or otherwise) and
properties, whether tangible or intangible, used in connection with the business
of (i) providing voice, video or data communications services, (ii) creating,
developing, marketing or selling communications related equipment, software and
other devices or (iii) evaluating, participating in or pursuing any other
activity or opportunity that is related or incidental to those identified in
clauses (i) or (ii); provided that "Telecommunications Assets" shall not include
any asset constituting Collateral.
"Total Capitalization" means, as of any date of determination, the sum
--------------------
of (a) Total Indebtedness as of such date and (b) Contributed Capital as of such
date.
29
"Total Indebtedness" means, as of any date of determination, the sum
------------------
of (a) Consolidated Indebtedness as of such date and (b) the amount of accrued
interest on such Indebtedness that has been capitalized as of such date.
"Tranche A Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the Tranche A Availability
Termination Date and the date of termination of the Tranche A Commitments.
"Tranche A Availability Termination Date" means the earlier of (i) the
---------------------------------------
fourth anniversary of the Tranche A Full Availability Date and (ii) June 30,
2003.
"Tranche A Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche A Loans hereunder during the
Tranche A Availability Period, expressed as an amount representing the maximum
principal amount of the Tranche A Loans to be made by such Lender hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.06
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Tranche A Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche A
Commitment, as applicable. The initial aggregate amount of the Lenders' Tranche
A Commitments is $200,000,000.
"Tranche A Full Availability Date" means the date on which the
--------------------------------
conditions specified in Section 4.02 are satisfied (or waived in accordance with
Section 9.02).
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
----------------
outstanding Tranche A Loan.
"Tranche A Loans" means loans made or deemed made by the Lenders
---------------
pursuant to Section 2.01 of this Agreement.
"Tranche A Maturity Date" means the date that is the ninth anniversary
-----------------------
of the Tranche A Full Availability Date.
"Tranche A Payment Date" means each March 31, June 30, September 30
----------------------
and December 31, commencing on and including the first such date that is on or
after the Tranche A Availability Termination Date, and ending on and including
the Tranche A Maturity Date.
30
"Transactions" means the execution, delivery and performance by the
------------
Borrower of the Loan Documents, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"Unrestricted Subsidiary" means any Subsidiary that is designated as
-----------------------
an Unrestricted Subsidiary by the Board of Directors of the Borrower (and any
subsidiary of an Unrestricted Subsidiary); provided that a Subsidiary shall not
--------
be an Unrestricted Subsidiary unless such Subsidiary and each of its
subsidiaries (a) has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or understanding with the Borrower
or any Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Borrower or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Borrower; (c) is a Person with respect to which
neither the Borrower nor any Restricted Subsidiary has any direct or indirect
obligation (i) to subscribe for additional equity interests, except to the
extent that such obligation complies with Section 6.04, or (ii) to maintain or
preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; and (d) prior to the time such
Subsidiary is designated an Unrestricted Subsidiary, does not Guarantee or
otherwise directly or indirectly provide credit support for any Indebtedness of
the Borrower or any Restricted Subsidiary. Any such designation by the Board of
Directors of the Borrower shall be evidenced to the Administrative Agent by
filing with the Administrative Agent a certified copy of the resolution of the
Board of Directors of the Borrower giving effect to such designation and a
Financial Officer's certificate certifying that such designation complied with
the foregoing conditions and was permitted by Section 6.04. If, at any time,
any Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Agreement and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such
date (and, if such Indebtedness is not permitted to be incurred hereunder as of
such date an Event of Default shall be deemed to have occurred). The Board of
Directors of the Borrower may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary;
31
provided that such designation shall be deemed to be an incurrence of
--------
Indebtedness by a Restricted Subsidiary of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (i) such
Indebtedness is permitted hereunder at the time and (ii) no Default shall have
occurred and be continuing at the time of, or would result from, such
designation.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital Credit Agreement" means the Working Capital Credit
--------------------------------
Agreement dated as of September 17, 1998, among the Borrower, the Lenders party
thereto, and Lucent, as Administrative Agent.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
---------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Tranche A Loan") or by Type (e.g., a "LIBOR Loan") or by Class and Type (e.g.,
---- ----
a "Tranche A LIBOR Loan"). Borrowings also may be classified and referred to by
Class (e.g., a "Tranche A Borrowing") or by Type (e.g., a "LIBOR Borrowing") or
---- ----
by Class and Type (e.g., a "Tranche A LIBOR Borrowing").
----
SECTION 1.03. Terms Generally. The definitions of terms herein shall
----------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset"
32
and "property" shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including
cash, securities, accounts, contract rights, licenses and intellectual property.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
-----------------------
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(b) Each reference herein to any financial term, definition or
computation that is to be calculated for or with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis in accordance with GAAP shall be
calculated excluding and without giving effect to Unrestricted Subsidiaries or
any investment therein or earnings thereon, except to the extent otherwise
expressly provided herein.
ARTICLE II
The Loans
---------
SECTION 2.01. Tranche A Commitments. (a) Subject to the terms and
----------------------
conditions set forth herein, each Lender agrees to make Tranche A Loans to the
Borrower at any time and from time to time during the Tranche A Availability
Period in an aggregate principal amount not exceeding its remaining Tranche A
Commitment at the time; provided that (i) the aggregate principal amount of
Tranche A Loans made prior to the Tranche A Full Availability Date shall not
exceed the Initial Loan Limit and (ii) on and after the Tranche A Full
Availability Date, the Lenders shall not be required to make Tranche A Loans in
an amount that would result in the aggregate principal
33
amount of all Tranche A Loans made hereunder exceeding 200% of the aggregate Net
Proceeds received by the Borrower from contributions of equity capital or the
issuance of Other Debt subsequent to April 27, 1998. Amounts repaid in respect
of Tranche A Loans may not be reborrowed.
(b) On and as of the Effective Date, all Bridge Loans outstanding as
of such date shall become and be converted into Tranche A Loans outstanding
hereunder and, for purposes of Section 2.06(b), the Tranche A Lenders shall be
deemed to have made Tranche A Loans on the Effective Date in an aggregate
principal amount equal to such Bridge Loans. All Deferred Interest on, and all
other accrued interest on the outstanding principal of or Deferred Interest on,
such Bridge Loans as of the Effective Date shall continue to constitute Deferred
Interest on, or accrued interest on the outstanding principal of or Deferred
Interest on, the Tranche A Loans resulting from the conversion of such Bridge
Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as
---------------------
part of a Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be
made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
--------
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of LIBOR Loans or ABR Loans as the Borrower may request in accordance
herewith. Each Lender at its option may make any LIBOR Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
--------
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any LIBOR
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $2,500,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is not
less than $500,000; provided that (i) an ABR Borrowing may be in an aggregate
--------
amount that is equal to the entire remaining Commitments of the applicable Class
and (ii) the limitations of this sentence shall not be applicable so long as
Lucent and its Affiliates are the only
34
Lenders. Borrowings of more than one Type and Class may be outstanding at the
same time.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing as a LIBOR Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date for the Loans included in such
Borrowing.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the
------------------------
Borrower shall notify the Administrative Agent of such request by telephone (a)
in the case of a LIBOR Borrowing, not later than 2:00 p.m., New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 2:00 p.m., New York City time, on the
Business Day before the date of the proposed Borrowing; provided that the
--------
Borrower may make only one request for a Borrowing in any single calendar month
(it being understood that all Borrowings made by the Borrower on the same date
shall be treated as a single request for a Borrowing for purposes of this
limitation). Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) the Class of, and the aggregate amount of, such Borrowing and the
portion of the Purchase Price to be paid with the proceeds therefrom (and
each written Borrowing Request shall attach copies of Lucent's invoices for
such portion of the Purchase Price);
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a LIBOR Borrowing or an ABR
Borrowing; and
(iv) in the case of a LIBOR Borrowing, the initial Interest Period to
be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period".
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any
35
requested LIBOR Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing. A Borrowing Request
shall not be required with respect to the Tranche A Loans that will result from
the conversion of Bridge Loans on the Effective Date pursuant to Section
2.01(b).
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make
----------------------
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of Lucent maintained with the Administrative Agent and
designated by Lucent for such purpose (for application to pay an equivalent
amount of the Purchase Price to be paid with the proceeds of such Loans as
specified in the applicable Borrowing Request). Notwithstanding the foregoing,
(i) if Lucent or any Affiliate thereof is a Lender, then Lucent or such
Affiliate may make its Loan by crediting the amount thereof against an
equivalent amount of the Purchase Price to be paid with such Loan and shall be
deemed to have made a Loan in the amount of such credit and (ii) the
Administrative Agent will make the Loans of the other Lenders available as
provided in the preceding sentence.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate
36
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans of the same Class. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Borrowing initially
-------------------
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a LIBOR Borrowing, shall have an initial Interest Period as specified in
such Borrowing Request, except that each Tranche A Loan resulting from the
conversion of a Bridge Loan on the Effective Date pursuant to Section 2.01(b)
initially shall be of the same Type as the converted Bridge Loan and, in the
case of any such Tranche A Loan that is a LIBOR Loan, shall have a remaining
Interest Period equal to the remaining Interest Period of such converted Bridge
Loan. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a LIBOR
Borrowing, may elect Interest Periods therefor, all as provided in this Section.
The Borrower may elect different options with respect to different portions of
the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the
Loans comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing
(in which case the information to be
37
specified pursuant to clauses (iii) and (iv) below shall be specified for
each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a LIBOR Borrowing or an
ABR Borrowing; and
(iv) if the resulting Borrowing is a LIBOR Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a LIBOR Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a LIBOR Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
a one month LIBOR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a LIBOR Borrowing and (ii) unless repaid, each
LIBOR Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued as
a LIBOR Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding LIBOR Borrowings of such Class with
Interest Periods ending on or prior to such scheduled repayment date plus the
aggregate principal amount of outstanding ABR Borrowings of such Class would be
less than the aggregate principal amount of Loans
38
of such Class required to be repaid on such scheduled repayment date.
SECTION 2.06. Termination and Reduction of Commitments. (a) Unless
-----------------------------------------
previously terminated, (i) the Tranche A Commitments shall terminate on the
Tranche A Availability Termination Date and (ii) the Additional Commitments of
any Class shall terminate on the date specified in the Additional Loan
Supplement applicable to such Class.
(b) On the date of each Loan of any Class made by any Lender such
Lender's Commitment of such Class shall be reduced by an amount equal to such
Loan.
(c) In the event that a prepayment would be required pursuant to
paragraph (b), (c), (d) or (e) of Section 2.09, all Commitments then in effect
shall be reduced ratably by an aggregate amount equal to the excess, if any, of
the amount of the required prepayment over the aggregate principal amount of
Loans and Deferred Interest outstanding immediately prior to giving effect to
such prepayment.
(d) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that each reduction of the
--------
Commitments pursuant to this paragraph (d) shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000.
(e) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments of any Class under paragraph (d)
of this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any such notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section shall be irrevocable. Any termination
or reduction of the Commitments of any Class shall be permanent. Each reduction
of the Commitments of any Class pursuant to paragraph (d) of this Section shall
be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
-------------------------------------
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender (i) the then unpaid principal amount of each Tranche
A Loan of such Lender as provided in Section 2.08 and (ii) the then unpaid
principal amount of each Additional
39
Loan of such Lender as provided in the Additional Loan Supplement applicable to
Additional Loans of such Class.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest (including Deferred Interest) payable and paid to such
Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest (including Deferred Interest) due and payable or to become
due and payable from the Borrower to each Lender hereunder and (iii) the amount
of any sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender such a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
(including Deferred Interest) shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory
note is a registered note, to such payee and its registered assigns).
SECTION 2.08. Amortization of Loans. (a) Subject to adjustment
----------------------
pursuant to paragraph (d) of this Section, the Borrower shall repay Tranche A
Borrowings and Deferred Interest thereon on each Tranche A Payment Date set
forth below in an aggregate amount equal to the percentage set forth opposite
such Tranche A Payment Date multiplied by an amount equal to the sum of all
Tranche A Loans and
40
Deferred Interest thereon outstanding as of the close of business on the Tranche
A Availability Termination Date:
Tranche A Payment Date Percentage
------------------------------------------- -------------------------
First 1.25%
Second 1.25%
Third 1.25%
Fourth 1.25%
Fifth 2.50%
Sixth 2.50%
Seventh 2.50%
Eighth 2.50%
Ninth 6.25%
Tenth 6.25%
Eleventh 6.25%
Twelfth 6.25%
Thirteenth and
thereafter prior to 7.50%
the Tranche A
Maturity Date
Tranche A Maturity Date Balance
(b) Subject to adjustment pursuant to paragraph (d) of this Section,
the Borrower shall repay Borrowings of Additional Loans of each Class (and
Deferred Interest thereon, if applicable) as provided in the Additional Loan
Supplement applicable to Additional Loans of such Class.
(c) To the extent not previously paid, all Loans of each Class and
Deferred Interest thereon shall be due and payable on the Maturity Date with
respect to Loans of such Class.
(d) Any prepayment of a Borrowing or Deferred Interest of any Class
shall be applied to reduce ratably the subsequent scheduled repayments of the
Borrowings and Deferred Interest of such Class to be made pursuant to this
Section; provided that (i) prepayments of Tranche A Borrowings and Deferred
--------
Interest thereon that are made prior
41
to the Tranche A Availability Termination Date shall not affect the scheduled
repayments to be made pursuant to paragraph (a) of this Section and (ii) in the
case of Additional Loans of any Class, the provisions of this paragraph (d)
shall be subject to any contrary provisions specified in the Additional Loan
Supplement applicable to Additional Loans of such Class.
(e) Prior to any repayment of any Borrowings of any Class hereunder,
the Borrower shall select the Borrowing or Borrowings of the applicable Class to
be repaid and shall notify the Administrative Agent by telephone (confirmed by
telecopy) of such selection not later than 2:00 p.m., New York City time, three
Business Days before the scheduled date of such repayment; provided that each
--------
repayment of Borrowings of any Class shall be applied to repay any outstanding
ABR Borrowings of such Class before any other Borrowings of such Class. If the
Borrower fails to make a timely selection of the Borrowing or Borrowings to be
repaid, such repayment shall be applied, first, to repay any outstanding ABR
Borrowings of the applicable Class and, second, to other Borrowings of the
applicable Class in the order of the remaining duration of their respective
Interest Periods (the Borrowing with the shortest remaining Interest Period to
be repaid first). Each repayment of a Borrowing or Deferred Interest thereon
shall be applied, first, ratably to Deferred Interest on the Loans included in
the repaid Borrowing and, second, ratably to the Loans included in the repaid
Borrowing. Repayments of Borrowings or Deferred Interest thereon shall be
accompanied by the payment of accrued interest (other than Deferred Interest) on
the amount thereof.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
--------------------
right at any time and from time to time to prepay any Borrowing or Deferred
Interest thereon in whole or in part, without premium or penalty (except as
provided in Section 2.14), subject to the requirements of this Section.
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Restricted Subsidiary in respect
of any Prepayment Event, the Borrower shall, within three Business Days after
such Net Proceeds are received, prepay Borrowings and Deferred Interest in an
aggregate amount equal to such Net Proceeds.
(c) In the event and on each occasion that any Collateral Trigger
Event occurs, the Borrower shall, within three Business Days after the date that
such Collateral
42
Trigger Event occurs, prepay Borrowings and Deferred Interest in an aggregate
amount equal to the Collateral Prepayment Amount with respect to such Collateral
Trigger Event.
(d) Following the end of each fiscal year of the Borrower, commencing
with the fiscal year during which the Tranche A Availability Termination Date
occurs, the Borrower shall prepay Borrowings and Deferred Interest in an
aggregate amount equal to 50% of Excess Cash Flow for such fiscal year. Each
prepayment pursuant to this paragraph shall be made on or before the date on
which financial statements are delivered pursuant to Section 5.01 with respect
to the fiscal year for which Excess Cash Flow is being calculated (and in any
event within 90 days after the end of such fiscal year).
(e) In the event and on each occasion that the Borrower or any
Restricted Subsidiary Repays any Indebtedness of the Borrower or any Restricted
Subsidiary then the Borrower shall, within three Business Days after the date of
such Repayment, prepay Borrowings and Deferred Interest in an aggregate amount
equal to the product of (x) the sum of the aggregate principal amount of the
Loans outstanding at the time plus Deferred Interest thereon, multiplied by (y)
a fraction, the numerator of which is the aggregate principal amount of such
Repayment, and the denominator of which is the amount of Consolidated
Indebtedness immediately prior to such Repayment (excluding Indebtedness in
respect of the Loans and Deferred Interest and Indebtedness outstanding under
revolving credit facilities); provided that prepayments of Borrowings and
--------
Deferred Interest shall not be required pursuant to this paragraph in respect of
(i) Repayments of Loans or Deferred Interest or loans under the Working Capital
Credit Agreement, (ii) any Repayment of Indebtedness to the extent such
Repayment is refinanced by incurring Other Debt or by incurring other
Indebtedness that (A) has a scheduled maturity date that is on or after the
scheduled maturity date of the Indebtedness being refinanced, (B) has a weighted
average life to maturity that is equal to or longer than the remaining weighted
average life to maturity of the Indebtedness being refinanced, determined
immediately prior to giving effect to such Repayment and (C) does not include
any provisions that may require mandatory Repayment thereof prior to scheduled
maturity, other than scheduled repayments taken into consideration in
determining compliance with clause (B) above and other provisions that are not
materially more burdensome than any such provisions included in the Indebtedness
being refinanced, (iii) any Repayment of Indebtedness outstanding under a
revolving credit facility
43
to the extent that the commitments of the lenders to make loans thereunder
remain in effect after giving effect to such Repayment or are replaced by
commitments under a replacement revolving credit facility, (iv) any Repayment of
secured Indebtedness in connection with the sale of the assets securing such
Indebtedness, or (v) any Repayment of Indebtedness at the scheduled final
maturity thereof or in accordance with regularly scheduled amortization
requirements prior to maturity.
(f) Prior to any optional or mandatory prepayment of Borrowings or
Deferred Interest hereunder, the Borrower shall select the Borrowing or
Borrowings (and Deferred Interest thereon) to be prepaid and shall specify such
selection in the notice of such prepayment pursuant to paragraph (g) of this
Section; provided that each prepayment of Borrowings of any Class shall be
--------
applied to prepay ABR Borrowings of such Class before any other Borrowings of
such Class. In the event of any optional or mandatory prepayment of Borrowings
or Deferred Interest made at a time when Borrowings of more than one Class are
outstanding, the Borrower shall select Borrowings to be prepaid so that the
aggregate amount of such prepayment is allocated among the Classes pro rata
based on the aggregate principal amount of outstanding Borrowings (plus the
aggregate amount of Deferred Interest thereon at the time) of each such Class.
(g) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof (and Deferred Interest
thereon) to be prepaid and, in the case of a mandatory prepayment, a reasonably
detailed calculation of the amount of such prepayment. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing (and Deferred
Interest thereon) shall be in an amount that would be permitted in the case of
an advance of a Borrowing of the same Type as provided in Section 2.02, except
as necessary to apply fully the required amount of a mandatory prepayment. Each
prepayment of a Borrowing or Deferred Interest thereon shall be applied, first,
ratably to Deferred Interest on the Loans included in the repaid Borrowing and,
second, ratably to the Loans included in the prepaid Borrowing. Prepayments of
Borrowings or Deferred Interest thereon shall be accompanied by the payment of
accrued interest (other than Deferred Interest) on the amount prepaid.
44
(h) The Borrower shall prepay all outstanding Borrowings and Deferred
Interest on June 30, 1999, unless the Tranche A Full Availability Date has
occurred.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
-----
Administrative Agent for the account of each Tranche A Lender a commitment fee,
which shall accrue at the rate of 0.50% per annum on the average daily amount of
the Tranche A Commitment of such Lender during the period from and including the
Tranche A Full Availability Date to but excluding the date on which the Tranche
A Commitments terminate. Accrued commitment fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the date
on which the Tranche A Commitments terminate, commencing on the first such date
to occur after the Tranche A Full Availability Date. All commitment fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day). The commitment fees payable pursuant to this paragraph shall not apply to
Additional Commitments, it being understood that any fees payable with respect
to Additional Commitments shall be set forth in the applicable Additional Loan
Supplement.
(b) The Borrower agrees to pay to Lucent, for its own account, fees
in the amounts and at the times separately agreed.
(c) The Borrower agrees to pay to the Administrative Agent and the
Collateral Agent (if other than Lucent), for its own account, fees in the
amounts and at the times separately agreed.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, (i) to the applicable Agent, (ii) to Lucent, in the
case of fees payable to it, or (iii) to the Administrative Agent, in the case of
commitment fees, for distribution to the Lenders entitled thereto. Fees paid
shall not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Tranche A Loans comprising each
---------
Tranche A ABR Borrowing (and Deferred Interest thereon) shall bear interest at
the Alternate Base Rate plus the Applicable Rate.
(b) The Tranche A Loans comprising each Tranche A LIBOR Borrowing
(and Deferred Interest thereon) shall bear interest at the Adjusted LIBO Rate
for the Interest Period in effect for such Borrowing plus the Applicable Rate.
45
(c) Notwithstanding the foregoing and subject to clause (iv) of
paragraph (d) of this Section, if any principal of or interest on any Tranche A
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to 2% plus the rate applicable to Tranche A ABR Loans as
provided in paragraph (a) of this Section.
(d) All accrued interest (other than Deferred Interest) on each
Tranche A Loan and all accrued interest on the Deferred Interest on such Tranche
A Loan (other than Deferred Interest) shall be payable in arrears on each
Interest Payment Date for such Tranche A Loan; provided that (i) interest
--------
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Tranche A Loan (or
Deferred Interest thereon), accrued interest on the principal amount of such
Tranche A Loan (or on such Deferred Interest, as the case may be) repaid or
prepaid shall be payable on the date of such repayment or prepayment, (iii) in
the event of any conversion of any Tranche A Loan prior to the end of the
current Interest Period therefor, accrued interest on such Tranche A Loan
(including accrued interest on any Deferred Interest thereon) shall be payable
on the effective date of such conversion and (iv) the Borrower may, at its
option, elect to defer payment of any interest payable on any Tranche A Loan
(including interest payable on Deferred Interest thereon, but excluding Deferred
Interest that becomes due pursuant to the terms of this Agreement) until the
earlier of (A) the date on which such Tranche A Loan and Deferred Interest
thereon are repaid or prepaid and (B) the end of the Tranche A Availability
Period; provided further that (1) any Deferred Interest on any Tranche A Loan
----------------
(including Deferred Interest on Deferred Interest) shall accrue interest from
and including the date on which such Deferred Interest was initially due at the
same rate as the principal amount of such Tranche A Loan and (2) the aggregate
amount of Deferred Interest on all Tranche A Loans shall not exceed $75,000,000.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the
46
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
---------------------------
commencement of any Interest Period for a LIBOR Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by a majority in interest of
the Lenders participating in such Borrowing that the Adjusted LIBO Rate for
such Interest Period will not adequately and fairly reflect the cost to
such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a LIBOR Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a LIBOR Borrowing, such Borrowing shall
be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
----------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other
condition affecting this Agreement or LIBOR Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation
to make any such Loan) or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such
47
Lender such additional amount or amounts as will compensate such Lender for such
additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
--------
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs
-------- -------
or reductions is retroactive, then the 180-day period referred to above shall be
extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments; Prepayment Fees. In the event
----------------------------------------
of (a) the payment of any principal of any LIBOR Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any LIBOR Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert, continue
or prepay any Loan on the date specified in any notice delivered pursuant
hereto, or (d) the assignment of any LIBOR Loan other than
48
on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section 2.17, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a LIBOR Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account of
------
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
--------
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent or Lender receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative
49
Agent or such Lender on or with respect to any payment by or on account of any
obligation of the Borrower hereunder or under any other Loan Document (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the
Administrative Agent on its own behalf or on behalf of a Lender, shall be
conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the United States of America, or
any treaty to which the United States of America is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
offs. (a) The Borrower shall make each payment required to be made by it
-----
hereunder or under any other Loan Document (whether of principal, interest or
fees, or of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise)
prior to 2:00 p.m., New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at The Chase Manhattan Bank, New York, New York, ABA no.
▇▇▇▇▇▇▇▇▇, account no. ▇▇▇▇▇▇▇▇▇▇, phone no. (▇▇▇) ▇▇▇-▇▇▇▇ (or such other
account as the Administrative Agent shall from time to time specify
50
by notice), except that payments pursuant to Sections 2.10(b), 2.10(c), 2.13,
2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, towards payment
of interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to such
parties, and (ii) second, towards payment of principal then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
--------
purchased and all or any portion of the payment giving rise thereto is
recovered, such participations shall be rescinded and the purchase price
restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment made
by the Borrower pursuant to and in accordance with the express terms of this
Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this
51
paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against the Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) Without limiting the generality of paragraph (a) above, the
Borrower's obligations to make each payment required to be made by it hereunder
or under any other Loan Document (whether of principal, interest, fees or
otherwise) shall be absolute and unconditional and shall not be subject to any
delay, reduction, set-off, counterclaim, defense or recoupment for any reason,
including any failure of the Network or any part thereof, or any dispute with,
breach of representation or warranty by or claim against any supplier,
manufacturer, installer, vendor or distributer, including Lucent.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a)
-----------------------------------------------
If any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
52
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
--------
shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
SECTION 2.18. Additional Loan Supplements. The Borrower and the
----------------------------
Administrative Agent may, at any time and from time to time, enter into one or
more Additional Loan Supplements with one or more Persons who agree to become
Lenders pursuant to such Additional Loan Supplements and undertake Additional
Commitments pursuant thereto; provided that the aggregate principal amount of
--------
Additional Loans made pursuant to all Additional Loan Supplements shall not
exceed $400,000,000 (excluding Deferred Interest, if any). An Additional Loan
Supplement shall not require the consent or approval of any Lender, other than
Lenders that undertake Additional Commitments thereunder. No Lender shall have
any obligation to enter into any Additional Loan Supplement or to undertake any
Additional Commitment.
53
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and the
---------------------
Restricted Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are
------------------------------
within the Borrower's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. Each of the Loan
Documents has been duly executed and delivered by the Borrower and constitutes a
legal, valid and binding obligation of the Borrower, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
-------------------------------------
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings necessary
to perfect Liens created under the Security Agreement, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of any Loan Party or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, agreement or other
instrument binding upon any Loan Party or its assets, or give rise to a right
thereunder to require any payment to be made by any Loan Party, and (d) will not
result in the creation or imposition of any Lien on any asset of any Loan Party,
except Liens created under the Security Agreement.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
------------------------------------------------
The Borrower has heretofore furnished to the Lenders its consolidated balance
sheet and statements
54
of income, stockholders equity and cash flows (i) as of and for the fiscal year
ended December 31, 1997, reported on by PricewaterhouseCoopers LLP (successor to
Coopers & ▇▇▇▇▇▇▇, L.L.P.), independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended June 30, 1998,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since June 30, 1998, there has been no material adverse change in
the business, condition (financial or otherwise), operations, performance or
properties of the Borrower and the Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties and Licenses. (a) Each of the Loan Parties
------------------------
has good title to, or valid leasehold interests in, all the real and personal
property material to its business owned or leased by it, except for defects in
title that do not interfere with its ability to conduct its business as
currently conducted and could not, individually or in the aggregate, reasonably
be expected to result in a Material Adverse Effect.
(b) Each of the Loan Parties owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Loan Parties does not
infringe upon the rights of any other Person, except for any such infringements
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth all FCC Licenses existing as of the
Effective Date and all other licenses and permits in effect as of the Effective
Date that are material to the business of the Borrower and the Restricted
Subsidiaries. Each of the FCC Licenses, and each other license or permit that
is material to the business of the Borrower and the Restricted Subsidiaries, is
valid and in full force and effect, and the Borrower and the Restricted
Subsidiaries are in compliance with the terms and conditions thereof except
where the failure to so comply could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
55
SECTION 3.06. Litigation and Environmental Matters. (a) There are
-------------------------------------
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of the Borrower or any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the
------------------------------------
Borrower and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. None of the
--------------------------------------
Loan Parties is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
SECTION 3.09. Taxes. Each of the Loan Parties has timely filed or
------
caused to be filed all Tax returns and reports required to have been filed and
has paid or caused to be paid all Taxes required to have been paid by it,
56
except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the applicable Loan Party has set aside on its books
adequate reserves or (b) the filing of state or local Tax returns and reports,
or the payment of state or local Taxes, to the extent that the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred.
------
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
-----------
all material agreements, instruments and corporate or other restrictions to
which any of the Loan Parties is subject, and all other matters known to any of
them, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports, financial statements,
certificates or other written information concerning the Borrower or its
Subsidiaries furnished by or on behalf of any Loan Party to the Administrative
Agent or any Lender in connection with the negotiation of this Agreement or any
other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
--------
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth as of the
-------------
Effective Date the name of, and the ownership interest of the Borrower in, each
Subsidiary of the Borrower and identifies each such Subsidiary (if any) that is
an Unrestricted Subsidiary or a License Subsidiary.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of
----------
all insurance maintained by or on behalf of the Borrower and its Subsidiaries as
of the Effective Date. As of the Effective Date, all premiums then due and
payable in respect of such insurance have been paid.
SECTION 3.14. Labor Matters. As of the Effective Date, there are no
--------------
strikes, lockouts or slowdowns against any Loan Party pending or, to the
knowledge of the Borrower, threatened. The hours worked by and payments made to
employees of the Loan Parties have not been in violation of the Fair Labor
Standards Act or any other applicable
57
Federal, state, local or foreign law dealing with such matters, except for such
violations that could not reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect. All payments due from any
Loan Party, or for which any claim may be made against any Loan Party, on
account of wages and employee health and welfare insurance and other benefits,
have been paid or accrued as a liability on the books of the applicable Loan
Party, except for such failures to so pay or accrue that could not reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect. The consummation of the Transactions will not give rise to any right of
termination or right of renegotiation on the part of any union under any
collective bargaining agreement to which any Loan Party is bound.
SECTION 3.15. Purchase Agreement. The Purchase Agreement is in full
-------------------
force and effect. The Borrower is in substantial compliance with the terms and
conditions of the Purchase Agreement.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
---------------
Loans hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of each of (i) Ropes & ▇▇▇▇, counsel for the Borrower,
substantially in the form of Exhibit D-1, (ii) Wiley, Rein & Fielding,
special FCC counsel for the Borrower, substantially in the form of Exhibit
D-2, and (iii) Cravath, Swaine & ▇▇▇▇▇, counsel for Lucent, substantially
in the form of Exhibit D-3, and, in the case of each such opinion required
by this
58
paragraph, covering such other matters relating to the Loan Parties, the
Loan Documents or the Transactions as the Administrative Agent shall
reasonably request. The Borrower hereby requests its counsel referred to in
clauses (i) and (ii) of this paragraph to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal matters
relating to the Loan Parties, the Loan Documents or the Transactions, all
in form and substance satisfactory to the Administrative Agent and its
counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a), (b) and (c) of Section 4.03.
(e) The Administrative Agent and Lucent shall have received all fees
and other amounts due and payable to them hereunder on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or payment
of all expenses required to be reimbursed or paid by the Borrower hereunder
or under any other Loan Document.
(f) The Lenders shall be satisfied with the corporate and legal
structure and capitalization of the Borrower and the Restricted
Subsidiaries, including the charter and by-laws of the Borrower and each
Restricted Subsidiary and each agreement or instrument evidencing
Indebtedness.
(g) The Collateral Agent shall have received (i) counterparts of the
Security Agreement signed on behalf of the Borrower and (ii) evidence
satisfactory to it that all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by the Collateral Agent to be filed, registered or recorded to
create or perfect the Liens intended to be created under the Security
Agreement have been so filed, registered or recorded.
59
(h) The Collateral Agent shall have received a completed Perfection
Certificate dated the Effective Date and signed by a Financial Officer of
the Borrower, together with all attachments contemplated thereby, including
(i) the results of a search of the Uniform Commercial Code (or equivalent)
filings made with respect to the Borrower in the jurisdictions contemplated
by the Perfection Certificate and (ii) copies of the financing statements
(or similar documents) disclosed by such search and evidence reasonably
satisfactory to the Collateral Agent that the Liens indicated by such
financing statements (or similar documents) are permitted by Section 6.02
or have been released.
(i) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in effect
and that the Collateral Agent has been named as an additional insured and
loss payee under all insurance policies to be maintained with respect to
the properties of the Borrower constituting the Collateral.
(j) All FCC Licenses shall be owned by the Borrower or a License
Subsidiary. No event shall have occurred that would subject any FCC
License to revocation by the FCC, except for such FCC Licenses the loss of
which could not reasonably be expected, individually or in the aggregate,
to result in a Material Adverse Effect.
(k) The Lenders shall have received the Borrower's most recent
Business Plan, including financial projections, and there shall have been
no material adverse changes in the Business Plan compared to the
information disclosed to Lucent prior to June 18, 1998.
(l) All material intercompany agreements and arrangements between the
Borrower or any wholly owned Restricted Subsidiary, on the one hand, and
any Unrestricted Subsidiary, any Restricted Subsidiary that is not a wholly
owned Restricted Subsidiary or any other Affiliate of the Borrower or any
wholly owned Restricted Subsidiary, on the other hand, with respect to tax
sharing, management fee or servicing fee agreements, arrangements or
relationships shall have been completed on terms and conditions (including
with respect to the subordination of any obligations to pay any fees
thereunder to the prior payment in full of the Obligations) reasonably
satisfactory to the Lenders and
60
shall have been set forth in written agreements (the "Intercompany
------------
Agreements") reasonably satisfactory in form and substance to the Lenders.
----------
True and correct copies of all Intercompany Agreements shall have been
delivered to the Lenders.
(m) The Administrative Agent shall have received counterparts of the
Escrow Agreement signed on behalf of the Borrower.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
hereunder shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New
York City time, on December 31, 1998 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.02. Tranche A Full Availability Date. The obligations of
---------------------------------
the Lenders to make Tranche A Loans hereunder in an aggregate principal amount
exceeding the Initial Loan Limit shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance
with Section 9.02):
(a) The Borrower shall have received aggregate Net Proceeds of not
less than $50,000,000 from contributions of equity capital or the issuance
of Other Debt subsequent to April 27, 1998.
(b) The lending commitments under the Working Capital Credit
Agreement shall have been terminated and the Borrower shall have paid in
full the principal of and accrued interest on all loans and all other
amounts owed by the Borrower under such Agreement.
(c) The Administrative Agent shall have received a certificate signed
by the President, a Vice President or a Financial Officer of the Borrower
confirming compliance with paragraphs (a) and (b) of this Section.
The Administrative Agent shall notify the Borrower and the Lenders of the
Tranche A Full Availability Date, and such notice shall be conclusive and
binding. Notwithstanding the foregoing, the obligations of the Lenders to make
Loans hereunder in an aggregate principal amount exceeding the Initial Loan
Limit shall not become effective unless the conditions set forth in this Section
are satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m.,
61
New York City time, on June 30, 1999 (and, in the event such conditions are not
so satisfied or waived, the Commitments shall terminate at such time).
SECTION 4.03. Each Borrowing. The obligation of each Lender to make
---------------
a Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) At the time of and immediately after giving effect to such
Borrowing, the representations and warranties of the Borrower set forth in
the Loan Documents shall be true and correct (or, in the case of
representations and warranties that are not qualified as to materiality,
true and correct in all material respects) on and as of the date of such
Borrowing (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and
correct as of such earlier date).
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing.
(c) At the time of and immediately after giving effect to such
Borrowing, the Purchase Agreement shall be in full force and effect and the
Borrower shall be in substantial compliance therewith.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, the Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
-------------------------------------------
Borrower will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
the audited consolidated balance sheet of the Borrower and related
statements of
62
operations, stockholders' equity and cash flows as of the end
of and for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP (successor to Coopers & ▇▇▇▇▇▇▇, L.L.P.) or
other independent public accountants of recognized national standing
(without, except for the audit with respect to the Borrower's 1998 fiscal
year, a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower
and its consolidated subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, the consolidated balance
sheet of the Borrower and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and the
then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous
fiscal year, all certified by one of its Financial Officers as presenting
fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of the Borrower's financial
statements under clause (a) or (b) above, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has occurred
and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with
Sections 6.15, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22 and 6.23 (to the
extent such Sections are operative during such fiscal period), (iii)
stating whether any change in GAAP or in the application thereof has
occurred since the date of the Borrower's audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial
63
statements accompanying such certificate, and (iv) if the financial
statements accompanying such certificate include consolidated financial
information for any Unrestricted Subsidiary, setting forth on a schedule
attached to such certificate a reasonably detailed calculation of all
adjustments to such financial statements necessary in order to reflect the
financial condition and results of operations of the Borrower and the
Restricted Subsidiaries on a consolidated basis in accordance with GAAP;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) promptly after the same become available but in any event within
90 days after the end of each fiscal year of the Borrower, the Business
Plan for the current fiscal year and updated financial projections through
the latest Maturity Date;
(f) within 15 days after the end of each fiscal quarter of the
Borrower, a report setting forth (i) the number of buildings connected to
the Network and (ii) the number of the Borrower's customers (treating each
office location of a Person purchasing services from the Borrower as a
separate customer to the extent such office locations are in separate
buildings);
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Borrower or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by the Borrower to its shareholders generally, as the case may be; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of any Loan
Document, as either Agent or any Lender may reasonably request.
64
SECTION 5.02. Notices of Material Events. (a) The Borrower will
---------------------------
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(i) the occurrence of any Default;
(ii) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect; and
(iii) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
(b) The Borrower will furnish to the Administrative Agent written
notice of the occurrence of any Collateral Trigger Event or Prepayment Event
promptly, but in any event within 30 days, after the occurrence of such event.
(c) Each notice delivered under this Section shall be accompanied by
a statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower
---------------------------------
will furnish to the Collateral Agent prompt written notice of any change (i) in
the Borrower's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of the Borrower's chief executive office, its principal place of
business or any asset constituting Collateral (including the installation of any
asset constituting Collateral at a location where Collateral has not previously
been located), (iii) in the Borrower's identity or corporate structure or (iv)
in the Borrower's Federal Taxpayer Identification Number. The Borrower agrees
not to effect or permit any change referred to in the preceding sentence unless
all filings have been made under the Uniform Commercial Code or otherwise that
are required in order for the Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. The Borrower also agrees promptly to notify the Collateral
Agent if any material portion of the Collateral is damaged or destroyed.
65
(b) Each year, at the time of delivery of annual financial statements
for the Borrower with respect to the preceding fiscal year pursuant to clause
(a) of Section 5.01, the Borrower shall deliver to the Collateral Agent a
certificate of a Financial Officer of the Borrower (i) setting forth the
information required pursuant to Sections 1 and 2 of the Perfection Certificate
or confirming that there has been no change in such information since the date
of the Perfection Certificate delivered on the Effective Date or the date of the
most recent certificate delivered pursuant to this Section and (ii) certifying
that all Uniform Commercial Code financing statements (including fixture
filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Security Agreement for a period of not
less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. The Borrower will, and
-------------------------------
will cause each of the Restricted Subsidiaries to, do or cause to be done all
things necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of the business of the Borrower and the Restricted Subsidiaries,
taken as a whole; provided that the foregoing shall not prohibit any merger,
--------
consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.05. Payment of Obligations. The Borrower will, and will
-----------------------
cause each of the Restricted Subsidiaries to, pay its material Indebtedness and
other material obligations, including Tax liabilities, before the same shall
become delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) the Borrower or
such Restricted Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending the resolution of
such contest could not reasonably be expected to result in a Material Adverse
Effect.
66
SECTION 5.06. Maintenance of Properties. The Borrower will, and will
--------------------------
cause each of the Restricted Subsidiaries to, keep and maintain all property
material to the conduct of the business of the Borrower and the Restricted
Subsidiaries, taken as a whole, in good working order and condition, ordinary
wear and tear excepted.
SECTION 5.07. Insurance. (a) The Borrower will, and will cause each
----------
of the Restricted Subsidiaries to, maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
(including fire and other risks insured by extended coverage) as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations, including public liability insurance against
claims for personal injury, death or property damage occurring upon, about or in
connection with the use of any properties owned, occupied or controlled by it as
well as such other insurance as may be required by law.
(b) All policies of casualty insurance maintained by or for the
benefit of the Borrower with respect to the Collateral shall be endorsed or
otherwise amended to include a "standard" or "New York" lender's loss payable
endorsement, in favor of and satisfactory to the Collateral Agent, which
endorsement shall provide that the insurance carrier shall pay all proceeds
otherwise payable to any Loan Party under such policies directly to the
Collateral Agent. All such policies also shall provide that none of the
Borrower, the Administrative Agent, the Collateral Agent nor any other party
shall be a coinsurer thereunder and shall contain a "Replacement Cost
Endorsement", without any deduction for depreciation, "mortgagee's
interest"/"breach of warranty coverage" and such other provisions as the
Administrative Agent or the Collateral Agent may reasonably require from time to
time to protect the interests of the Lenders. Each such policy also shall
provide that it shall not be canceled, modified or not renewed (i) by reason of
nonpayment of premium except upon not less than 10 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent
(giving the Administrative Agent and the Collateral Agent the right to cure
defaults in the payment of premiums) or (ii) for any other reason except upon
not less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent. The Borrower shall deliver to
the Administrative Agent and the Collateral Agent, prior to the cancelation,
modification or nonrenewal of any such policy of insurance, a copy of a renewal
or replacement policy (or other evidence of renewal of a policy previously
delivered to the Administrative Agent and the Collateral
67
Agent) together with evidence satisfactory to the Administrative Agent and the
Collateral Agent of payment of the premium therefor.
(c) The Borrower shall notify the Administrative Agent and the
Collateral Agent immediately whenever any separate insurance concurrent in form
or contributing in the event of loss with that required to be maintained under
this Section is taken out by any Loan Party, and shall promptly deliver to the
Administrative Agent and the Collateral Agent a duplicate original copy of such
policy or policies.
SECTION 5.08. Books and Records; Inspection Rights. The Borrower
-------------------------------------
will, and will cause each of the Restricted Subsidiaries to, keep proper books
of record and account in which full, true and correct entries are made of all
dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of the Restricted Subsidiaries to, permit any
representatives designated by either Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all during normal business hours and
as often as reasonably requested, without unreasonable interference with the
Borrower's business.
SECTION 5.09. Compliance with Laws and Agreements. The Borrower
------------------------------------
will, and will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority (including ERISA and all
Environmental Laws) applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except (a)
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, or (b) where (i)
the failure to so comply is being contested in good faith by appropriate
proceedings, (ii) the Borrower or such Restricted Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP or, in
the case of a foreign Restricted Subsidiary, in accordance with applicable
accounting principles in the relevant jurisdiction, (iii) such contest
effectively suspends the requirement to so comply and (iv) the failure to so
comply pending the resolution of such contest could not reasonably be expected
to result in a Material Adverse Effect.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans will be
----------------
used solely to make payments of portions of the Purchase Price.
68
SECTION 5.11. Further Assurances. The Borrower will execute any and
-------------------
all further documents, financing statements, agreements and instruments, and
take all such further actions (including the filing and recording of financing
statements, fixture filings and other documents), which may be required under
any applicable law, or which either Agent or the Required Lenders may reasonably
request, to effectuate the transactions contemplated by the Loan Documents or to
grant, preserve, protect or perfect the Liens created or intended to be created
by the Security Agreement or the validity or priority of any such Lien, all at
the expense of the Borrower. The Borrower also agrees to provide to either
Agent, upon request, evidence reasonably satisfactory to such Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Agreement.
SECTION 5.12. Casualty and Condemnation. (a) The Borrower will
--------------------------
furnish to the Agents and the Lenders prompt written notice of any casualty or
other damage to any portion of any Collateral or the commencement of any action
or proceeding for the taking of any Collateral or any part thereof or interest
therein under power of eminent domain or by condemnation or similar proceeding.
(b) If any event described in paragraph (a) of this Section results
in Net Proceeds (whether in the form of insurance proceeds, condemnation award
or otherwise), the Collateral Agent is authorized to collect such Net Proceeds
and, if received by the Borrower or any Subsidiary, such Net Proceeds shall be
paid over to the Collateral Agent. All such Net Proceeds retained by or paid
over to the Collateral Agent shall be held by the Collateral Agent and released
from time to time to pay the costs of repairing, restoring or replacing the
affected property or purchasing additional property constituting Collateral in
accordance with the terms of this Agreement and the applicable provisions of the
Security Agreement, subject to the provisions of the Security Agreement
regarding application of such Net Proceeds during a Default.
(c) If any Net Proceeds retained by or paid over to the Collateral
Agent as provided above continue to be held by the Collateral Agent on the date
that any prepayment is due pursuant to Section 2.09(c) in respect of the event
resulting in such Net Proceeds, then such Net Proceeds shall be applied to
prepay Borrowings as provided in Section 2.09(c).
SECTION 5.13. Interest Rate Protection. Beginning on the Tranche A
-------------------------
Full Availability Date, the
69
Borrower will from time to time enter into and maintain in effect one or more
Hedging Agreements satisfactory to the Required Lenders, the effect of which
shall be to fix or limit the interest cost to the Borrower with respect to such
portion of the Loans and Deferred Interest as shall be necessary in order that,
at all times, at least 50% of Consolidated Indebtedness shall be comprised of a
combination of (a) Indebtedness bearing interest at a fixed rate and (b) the
portion of the Loans and Deferred Interest covered by such Hedging Agreements.
SECTION 5.14. FCC Licenses. The Borrower will, and will cause each
------------
of the Restricted Subsidiaries to, maintain each FCC License in full force and
effect and comply with all terms and conditions thereof, except to the extent
that the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full,
the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, nor will it
-------------
permit any Restricted Subsidiary to, create, incur, assume or permit to exist
any Indebtedness, except:
(a) Indebtedness created under the Loan Documents or the Purchase
Agreement;
(b) subject to Sections 6.04 and 6.12, Indebtedness of the Borrower to
any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or
any other Restricted Subsidiary;
(c) subject to Section 6.04, Guarantees by the Borrower of
Indebtedness of any Restricted Subsidiary;
(d) Indebtedness of the Borrower or, subject to Section 6.12, any
Restricted Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets or FCC licenses by the Borrower or
such Restricted Subsidiary (other than assets constituting Collateral or other
assets that become accessions to assets
70
constituting Collateral or the removal or loss of which would adversely affect
the value of any assets constituting Collateral), including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of
any such assets or secured by a Lien on any such assets prior to the acquisition
thereof; provided that (A) such Indebtedness is incurred prior to or within 90
--------
days after such acquisition or the completion of such construction or
improvement and (B) any such Indebtedness incurred in connection with any
particular acquisition, construction or improvement shall not exceed the cost of
such acquisition, construction or improvement; provided further that, prior to
----------------
the Tranche A Full Availability Date, the aggregate principal amount of such
Indebtedness shall not exceed $20,000,000;
(e) Other Debt;
(f) Indebtedness outstanding on the Effective Date and set forth on
Schedule 6.01;
(g) Indebtedness of the Borrower incurred to refinance any
Indebtedness referred to in clause (d) or (f) above and Indebtedness of any
Restricted Subsidiary incurred to refinance any Indebtedness of such Restricted
Subsidiary referred to in clause (d) or (f) above; provided that (i) the
--------
principal amount of any such Indebtedness does not exceed the principal amount
of, plus accrued interest and any prepayment premiums applicable to, the
Indebtedness refinanced thereby, (ii) any such Indebtedness has a scheduled
maturity date that is on or after the scheduled maturity date of the
Indebtedness refinanced thereby, (iii) any such Indebtedness has a weighted
average life to maturity that is equal to or longer than the remaining weighted
average life to maturity of the Indebtedness refinanced thereby (determined
immediately prior to giving effect to such refinancing), (iv) any such
Indebtedness does not include any provisions that may require mandatory
Repayment thereof prior to scheduled maturity, other than scheduled repayments
taken into account in determining compliance with clause (iii) above and other
provisions that are not materially more burdensome than any such provisions
included in the Indebtedness refinanced thereby, and (v) any such Indebtedness
shall not be secured by any Lien other than Liens on assets securing the
Indebtedness being refinanced thereby;
(h) on and after the Tranche A Full Availability Date, Indebtedness
incurred or assumed in connection with a Permitted Acquisition; provided that
--------
the aggregate principal amount of such Indebtedness shall be subject to the
71
limitation set forth in clause (f) of the definition of "Permitted Acquisition";
and
(i) on and after the Tranche A Full Availability Date, other unsecured
Indebtedness of the Borrower and, subject to Section 6.12, Restricted
Subsidiaries, in an aggregate principal amount not exceeding $50,000,000 (or, if
the Borrower has received aggregate Net Proceeds of not less than $30,000,000
from contributions of equity capital subsequent to the date hereof,
$100,000,000) at any time outstanding; provided that, to the extent such
--------
Indebtedness consists of loans incurred pursuant to revolving credit facilities
with commercial banks or other financial institutions for working capital
purposes, such Indebtedness may be secured by accounts receivable.
SECTION 6.02. Liens. (a) The Borrower will not, nor will it permit
------
any Restricted Subsidiary to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(i) Liens created under the Security Agreement and the Purchase
Agreement;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary existing on the date hereof and set forth in Schedule
6.02; provided that (A) such Lien shall not apply to any other property or
--------
asset of the Borrower or any Restricted Subsidiary and (B) such Lien shall
secure only those obligations which it secures on the date hereof and
refinancings thereof that satisfy the criteria set forth in clause (g) of
Section 6.01;
(iv) any Lien existing on any property or asset prior to the date that
such property or asset was first acquired by the Borrower or any Subsidiary
or any Affiliate thereof or existing on any property or asset of any Person
that becomes a Subsidiary after the date hereof prior to the time such
Person becomes a Subsidiary; provided that (A) such Lien is not created in
--------
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, (B) such Lien shall not apply to any other property
or assets of the Borrower or any Subsidiary and (C) such Lien shall secure
only those obligations which it secures on the date of such acquisition or
the date such Person
72
becomes a Subsidiary, as the case may be, and refinancings thereof that
satisfy the criteria set forth in clause (g) of Section 6.01;
(v) Liens on fixed or capital assets (other than assets constituting
Collateral or other assets that become accessions to assets constituting
Collateral or the removal or loss of which would adversely affect the value
of any assets constituting Collateral) acquired, constructed or improved by
the Borrower or a Restricted Subsidiary; provided that (A) such Liens
--------
secure only Indebtedness permitted by clause (d) of Section 6.01 or a
refinancing thereof permitted by clause (g) of Section 6.01, (B) such Liens
and the Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed 100% of
the cost of acquiring, constructing or improving such fixed or capital
assets and (D) such Liens shall not apply to any other property or assets
of the Borrower or any Restricted Subsidiary;
(vi) Liens existing under the Collateral Pledge and Security Agreement
dated as of February 6, 1997, between the Borrower and the Bank of New
York; provided that such Liens secure only Indebtedness in a principal
--------
amount not to exceed the principal amount secured under such agreement on
the date hereof and do not apply to any other property or assets of the
Borrower or any Restricted Subsidiary;
(vii) Liens on accounts receivable (including related documents,
instruments and other general intangibles customarily pledged in connection
with a pledge of accounts receivable) securing Indebtedness permitted by
clause (i) of Section 6.01 incurred pursuant to revolving credit facilities
with commercial banks and other financial institutions for working capital
purposes; and
(viii) other Liens on assets of the Borrower and the Restricted
Subsidiaries (other than assets constituting Collateral or other assets
that become accessions to or otherwise are integrated with assets
constituting Collateral) securing monetary obligations in an aggregate
amount not exceeding (A) $1,000,000 at any time prior to the Tranche A Full
Availability Date and (B) $10,000,000 at any time on and after the Tranche
A Full Availability Date.
73
(b) Notwithstanding the foregoing, the Borrower will not, nor will it
permit any Restricted Subsidiary to, create any Lien (other than any Permitted
Encumbrance) on any FCC License or on any capital stock of or other ownership
interest in or Indebtedness of any License Subsidiary.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not, nor
--------------------
will it permit any Restricted Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or substantially all of its assets, or all or
substantially all of the stock of any of its Restricted Subsidiaries (in each
case, whether now owned or hereafter acquired), or liquidate or dissolve, except
that, if at the time thereof and immediately after giving effect thereto no
Default shall have occurred and be continuing (i) any Person may merge into the
Borrower or a Restricted Subsidiary (other than a License Subsidiary) pursuant
to a transaction that constitutes a Permitted Acquisition, provided that the
--------
survivor of such merger is the Borrower or a Restricted Subsidiary, as
applicable; (ii) any Restricted Subsidiary (other than a License Subsidiary) may
merge into any other Restricted Subsidiary (other than a License Subsidiary) in
a transaction in which the surviving entity is a Restricted Subsidiary, (iii)
any Restricted Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to the Borrower or to another Restricted Subsidiary (other than a License
Subsidiary) or (iv) any Restricted Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in its
best interests and is not materially disadvantageous to the Lenders; provided
--------
that any such merger involving the Borrower or any Person that is not a wholly
owned Restricted Subsidiary immediately prior to such merger shall not be
permitted unless also permitted by Section 6.04.
(b) The Borrower will not, nor will it permit any of its Restricted
Subsidiaries to, engage to any material extent in any business other than
telecommunications and data networking business and businesses related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions; Asset Sales. (a) The Borrower will not, nor will it permit any
--------------------------
of its Restricted Subsidiaries to, purchase, hold or acquire (including pursuant
to any merger with any Person that was not a wholly owned Restricted Subsidiary
prior to such merger) any capital stock, evidences of indebtedness or other
securities
74
(including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
(i) Permitted Investments;
(ii) subject to Section 6.12, investments by the Borrower and its
Restricted Subsidiaries in the capital stock of their respective Restricted
Subsidiaries; provided that the aggregate amount of outstanding investments
--------
made by the Borrower and its wholly owned Restricted Subsidiaries in, and
loans and advances made by the Borrower and its wholly owned Restricted
Subsidiaries to, Restricted Subsidiaries that are not wholly owned
Restricted Subsidiaries shall not exceed (A) $5,000,000 at any time prior
to the Tranche A Full Availability Date and (B) $20,000,000 at any time on
and after the Tranche A Full Availability Date;
(iii) subject to Section 6.12, loans or advances made by the Borrower
to any Restricted Subsidiary and made by any Restricted Subsidiary to the
Borrower or any other Restricted Subsidiary; provided that the aggregate
--------
amount of such loans and advances made by the Borrower and its wholly owned
Restricted Subsidiaries to Restricted Subsidiaries that are not wholly
owned Restricted Subsidiaries shall be subject to the limitation set forth
in clause (ii) above;
(iv) Guarantees by the Borrower of obligations of the Restricted
Subsidiaries; provided that the aggregate amount of outstanding obligations
--------
Guaranteed by the Borrower of Restricted Subsidiaries that are not wholly
owned Restricted Subsidiaries shall be treated as investments in such
Restricted Subsidiaries for purposes of the limitation set forth in the
proviso to clause (ii) above;
(v) Permitted Acquisitions;
(vi) (A) promissory notes received by the Borrower or any Restricted
Subsidiary in connection with sales of assets (other than assets
constituting Collateral) permitted by paragraph (b) below and (B) the
common stock of Pentriad North America, Inc. ("Pentriad") received by the
--------
Borrower in connection with the sale of assets to Pentriad described on
Schedule 6.04;
75
(vii) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(viii) (A) promissory notes of directors, officers or employees of the
Borrower or any Restricted Subsidiary issued to the Borrower in exchange
for common stock of the Borrower and (B) other loans and advances by the
Borrower or any Restricted Subsidiary to their respective directors,
officers or employees in an aggregate principal amount not exceeding
$1,000,000 at any one time outstanding; or
(ix) other investments by the Borrower or any of the Restricted
Subsidiaries (including (x) investments in Unrestricted Subsidiaries and
joint ventures and (y) investments in any Restricted Subsidiary existing at
the time such Subsidiary is designated as an Unrestricted Subsidiary) in an
aggregate amount not exceeding (A) $3,000,000 at any time prior to the
Tranche A Full Availability Date and (B) $10,000,000 on and after the
Tranche A Full Availability Date (in each case, valued at cost, without
regard to any write down or write up thereof).
(b) The Borrower will not, nor will it permit any of its Restricted
Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any capital stock of or ownership interest in any other Person owned
by it, nor will the Borrower permit any Restricted Subsidiary to issue (other
than to the Borrower or a wholly owned Restricted Subsidiary) any additional
shares of its capital stock or other ownership interest in such Restricted
Subsidiary, except:
(i) sales of (A) inventory, (B) obsolete, uneconomic or surplus
assets not exceeding, in the aggregate, $1,000,000 during any fiscal year
of the Borrower and (C) Permitted Investments, in each case in the ordinary
course of business;
(ii) transfers constituting investments permitted by paragraph (a) of
this Section or Restricted Payments permitted by Section 6.06;
(iii) sales, transfers and dispositions to the Borrower or, subject to
Section 6.12, a Restricted Subsidiary;
76
(iv) other sales, transfers and dispositions of obsolete, uneconomic
or surplus assets made when no Default has occurred and is continuing;
(v) prior to the Tranche A Full Availability Date, sales of assets not
exceeding, in the aggregate, $10,000,000; provided at least 85% of the
--------
consideration received for each such sale consists of cash;
(vi) on and after the Tranche A Full Availability Date, sales of assets
not exceeding, in the aggregate, 10% of Adjusted Consolidated Net Tangible
Assets during any period of 12 consecutive fiscal months (determined as of
the date closest to the commencement of such 12-month period for which a
consolidated balance sheet of the Borrower and its Restricted Subsidiaries
has been prepared); provided at least 85% of the consideration received for
each such sale consists of cash;
(vii) dispositions of Telecommunications Assets in exchange for
comparable Telecommunications Assets; provided that the Board of Directors
--------
of the Borrower shall have approved such disposition and exchange and
determined the fair market value of the Telecommunications Assets subject
to such transaction as evidenced by a resolution of such Board; and
(viii) sales, transfers and dispositions of the assets set forth on
Schedule 6.04;
provided that all sales, transfers, leases and other dispositions permitted
--------
hereby (other than pursuant to clause (iii) above) shall be made for fair value
and, if such asset constitutes Collateral, solely for cash consideration.
SECTION 6.05. Hedging Agreements. The Borrower will not, nor will it
-------------------
permit any of its Restricted Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements required by Section 5.13 and other Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any Restricted Subsidiary is exposed in the
conduct of its business or the management of its liabilities.
SECTION 6.06. Restricted Payments. The Borrower will not, nor will
--------------------
it permit any Restricted Subsidiary to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the Borrower
may declare and pay dividends with respect to its capital
77
stock payable solely in additional shares of its common stock or Permitted
Preferred Stock, (b) Restricted Subsidiaries may declare and pay dividends and
distributions ratably with respect to their common stock, and (c) the Borrower
may make regularly scheduled payments of principal of and interest on
Subordinated Indebtedness as and when due, subject to the subordination
provisions thereof.
SECTION 6.07. Transactions with Affiliates. The Borrower will not,
-----------------------------
nor will it permit any Restricted Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Unrestricted Subsidiaries or other Affiliates, except (a) transactions
that are at prices and on terms and conditions not less favorable to the
Borrower or such Restricted Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among the
Borrower and its wholly owned Restricted Subsidiaries not involving any other
Affiliate, (c) any Restricted Payment permitted by Section 6.06, (d)
transactions expressly contemplated by the Intercompany Agreements that are
conducted in accordance with the terms of the Intercompany Agreements and (e)
purchases by the Borrower from any Affiliate of equipment and services for the
Network at prices not exceeding the applicable Affiliate's cost therefor.
SECTION 6.08. Restrictive Agreements. The Borrower will not, and
-----------------------
will not permit any Restricted Subsidiary to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon the ability of any Restricted
Subsidiary to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to the Borrower or to
Guarantee Indebtedness of the Borrower; provided that (a) the foregoing shall
--------
not apply to restrictions and conditions imposed by law or by any Loan Document
and (b) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition).
SECTION 6.09. Repayment of Indebtedness. The Borrower will not, nor
--------------------------
will it permit any Restricted Subsidiary to, make any Repayment in respect of,
or make any payment in violation of any subordination terms of, any Indebtedness
of the Borrower or any Restricted Subsidiary
78
except (a) any Repayment of Indebtedness resulting in a prepayment of Loans and
Deferred Interest pursuant to Section 2.09(e) and (b) Repayments described in
any of the clauses of the proviso to Section 2.09(e).
SECTION 6.10. Intercompany Agreements. The Borrower will not, nor
------------------------
will it permit any Restricted Subsidiary to, enter into any material agreement
or arrangement after the date hereof that would constitute an Intercompany
Agreement without the prior written approval of the Required Lenders.
SECTION 6.11. Limitation on Sale-Leaseback Transactions. The
-----------------------------------------
Borrower will not, nor will it permit any Restricted Subsidiary to, enter into
any arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
that it intends to use for substantially the same purpose or purposes as the
property sold or transferred, except for any such sale of any fixed or capital
asset that is made for cash consideration in an amount not less than the cost of
such fixed or capital asset and is consummated within 90 days after the Borrower
or such Restricted Subsidiary acquires or completes the construction of such
fixed or capital asset.
SECTION 6.12. Restricted Subsidiaries. The Borrower will not permit
------------------------
any substantial part of the assets (other than FCC Licenses owned by License
Subsidiaries) and operations of the Borrower and the Restricted Subsidiaries
taken as a whole to be owned or conducted by the Restricted Subsidiaries taken
as a whole. Without limiting the generality of the foregoing, the Borrower will
not:
(a) sell, transfer, lease or otherwise dispose of any asset
constituting Collateral to any Restricted Subsidiary;
(b) permit the consolidated assets (excluding FCC Licenses owned by
License Subsidiaries) of the Restricted Subsidiaries (determined in accordance
with GAAP) at any time to exceed 15% of the consolidated assets of the Borrower
and the Restricted Subsidiaries (determined in accordance with GAAP) at such
time;
(c) permit the consolidated operating revenues of the Restricted
Subsidiaries for any fiscal quarter of the Borrower to exceed 15% of the
consolidated operating
79
revenues of the Borrower and the Restricted Subsidiaries for such fiscal
quarter;
(d) permit any Restricted Subsidiary to Guarantee any Indebtedness or
other obligation of the Borrower; or
(e) permit the aggregate principal amount of Indebtedness of the
Restricted Subsidiaries outstanding at any time (excluding Indebtedness owed to
the Borrower or to a Restricted Subsidiary and otherwise determined on a
consolidated basis in accordance with GAAP) to exceed $20,000,000.
SECTION 6.13. FCC Licenses and License Subsidiaries. The Borrower
--------------------------------------
will not permit any FCC License to be owned or acquired by any Person other than
the Borrower or a Restricted Subsidiary that (a) is wholly owned directly by the
Borrower, (b) does not engage in any business or activity other than the
ownership of one or more FCC Licenses and activities incidental thereto, (c)
does not own or acquire any assets other than one or more FCC Licenses, cash and
Permitted Investments and (d) does not have or incur any Indebtedness or other
liabilities other than liabilities imposed by law, including tax liabilities,
and other liabilities incidental to its existence and permitted business and
activities (any Restricted Subsidiary satisfying the foregoing requirements, a
"License Subsidiary"); provided that, to the extent the Borrower is advised by
------------------- --------
counsel that, in order to preserve the tax status of any tax-free reorganization
involving any Restricted Subsidiary (a "Tax-Free Merger Sub"), any FCC License
-------------------
cannot be held by the Borrower or a License Subsidiary, such FCC License shall
be held by such Tax-Free Merger Sub until such time as such FCC License may be
transferred to the Borrower or a License Subsidiary without adverse tax
consequences to the Borrower or the other parties to the transaction pursuant to
which such Tax-Free Merger Sub became a Subsidiary of the Borrower.
SECTION 6.14. ERISA. The Borrower will not permit the present value
------
of all accumulated benefit obligations under any Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) to
exceed the fair market value of the assets of such Plan.
SECTION 6.15. Secured Indebtedness to Total Capitalization. The
---------------------------------------------
Borrower will not permit the ratio of Secured Indebtedness to Total
Capitalization as of the last day of any fiscal quarter ending after the Tranche
A Full Availability Date to be more than .45 to 1.00.
80
SECTION 6.16. Total Indebtedness to Total Capitalization. The
-------------------------------------------
Borrower will not permit the ratio of Total Indebtedness to Total Capitalization
as of the last day of any fiscal quarter ending after the Tranche A Full
Availability Date to be more than .75 to 1.00.
SECTION 6.17. Senior Indebtedness to Consolidated EBITDA. The
-------------------------------------------
Borrower will not permit the ratio of (a) Senior Indebtedness as of the last day
of any fiscal quarter ending on any date during any period set forth below to
(b) 200% of Consolidated EBITDA for the period of two consecutive fiscal
quarters of the Borrower ending on such day to be greater than the ratio set
forth below opposite such date:
Date Ratio
----- -----
December 31, 2001; 10.0 to 1.0
March 31, 2002;
June 30, 2002; and
September 30, 2002
December 31, 2002; 6.5 to 1.0
March 31, 2003;
June 30, 2003; and
September 30, 2003
December 31, 2003; 3.5 to 1.0
March 31, 2004;
June 30, 2004; and
September 30, 2004
December 31, 2004; 2.5 to 1.0
March 31, 2005;
June 30, 2005; and
September 30, 2005
December 31, 2005 and 2.0 to 1.0
thereafter
SECTION 6.18. Total Indebtedness to Consolidated EBITDA. The
------------------------------------------
Borrower will not permit the ratio of (a) Total Indebtedness as of the last day
of any fiscal quarter ending on any date during any period set forth below to
(b) 200% of Consolidated EBITDA for the period of two consecutive fiscal
81
quarters of the Borrower ending on such day to be greater than the ratio set
forth below opposite such date:
Date Ratio
---- -----
December 31, 2001; 15.0 to 1.0
March 31, 2002;
June 30, 2002; and
September 30, 2002
December 31, 2002; 10.0 to 1.0
March 31, 2003;
June 30, 2003; and
September 30, 2003
December 31, 2003; 5.0 to 1.0
March 31, 2004;
June 30, 2004; and
September 30, 2004
December 31, 2004 and 4.0 to 1.0
thereafter
SECTION 6.19. Consolidated EBITDA to Consolidated Debt Service. The
-------------------------------------------------
Borrower will not permit the ratio of (a) 200% of Consolidated EBITDA for the
period of two consecutive fiscal quarters of the Borrower ending on any date
during any period set forth below to (b) Consolidated Debt Service for the
period of four consecutive fiscal quarters of the Borrower ending on such date
to be less than the ratio set forth below opposite such date:
Date Ratio
---- -----
September 30, 2001; 0.50 to 1.00
December 31, 2001; and
March 31, 2002
June 30, 2002; 0.75 to 1.00
September 30, 2002; and
December 31, 2002
March 31, 2003; 1.00 to 1.00
June 30, 2003;
September 30, 2003; and
December 31, 2003
March 31, 2004;
June 30, 2004; 1.05 to 1.00
September 30, 2004; and
December 31, 2004
82
March 31, 2005; 1.15 to 1.00
June 30, 2005;
September 30, 2005; and
December 31, 2005
March 31, 2006 and 1.25 to 1.00
thereafter
SECTION 6.20. Consolidated EBITDA to Consolidated Cash Interest
-------------------------------------------------
Expense. The Borrower will not permit the ratio of (a) 200% of Consolidated
--------
EBITDA for the period of two consecutive fiscal quarters of the Borrower ending
on any date during any period set forth below to (b) Consolidated Cash Interest
Expense for the period of four consecutive fiscal quarters of the Borrower
ending on such date to be less than the ratio set forth below opposite such
date:
Date Ratio
---- -----
September 30, 2001; 0.5 to 1.0
December 31, 2001; and
March 31, 2002
June 30, 2002; 1.0 to 1.0
September 30, 2002; and
December 31, 2002
March 31, 2003; 2.0 to 1.0
June 30, 2003;
September 30, 2003; and
December 31, 2003
March 31, 2004 and 2.5 to 1.0
thereafter
SECTION 6.21. Minimum Revenues. The Borrower will not permit the
-----------------
consolidated revenue of the Borrower and the Restricted Subsidiaries for any
fiscal quarter ending on a date listed below to be less than the amount listed
opposite such date:
Date Amount
---- ------
September 30, 1998 $ 3,900
December 31, 1998 83,700
March 31, 1999 335,300
June 30, 1999 718,500
September 30, 1999 2,957,300
December 31, 1999 5,710,600
March 31, 2000 10,047,000
June 30, 2000 15,962,500
83
September 30, 2000 28,450,800
December 31, 2000 39,436,700
SECTION 6.22. Minimum Buildings on Network. The Borrower will not
-----------------------------
permit the number of buildings connected to the Network (i.e. buildings for
----
which the Borrower or a Restricted Subsidiary possesses roof rights, has
installed equipment and is capable of transmitting to a hub site) as of any date
listed below to be less than the number listed opposite such date:
Date Number
---- ------
September 30, 1998 14
December 31, 1998 81
March 31, 1999 142
June 30, 1999 190
SECTION 6.23. Minimum Customers. The Borrower will not permit the
------------------
number of customers of the Borrower and its Restricted Subsidiaries (treating
each office location of a Person purchasing services from the Borrower as a
separate customer to the extent such office locations are in separate buildings)
as of any date listed below to be less than the number listed opposite such
date:
Date Number
---- ------
September 30, 1998 16
December 31, 1998 116
March 31, 1999 342
June 30, 1999 620
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of or Deferred
Interest on any Loan when and as the same shall become due and payable,
whether at the due date thereof or at a date fixed for prepayment thereof
or otherwise;
(b) the Borrower shall fail to pay any interest (other than Deferred
Interest) on any Loan or any fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under this Agreement,
when and as the same shall become due and
84
payable, and such failure shall continue unremedied for a period of three
Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or
in connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, shall prove to have been incorrect in any
respect (or, in the case of any representation or warranty that is not
qualified as to materiality, in any material respect) when made or deemed
made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.04 (with respect to the
existence of the Borrower) or 5.10 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) any Loan Party shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable and such
failure shall continue for more than any expressly applicable period of
grace with respect thereto (without giving effect to any waiver, consent or
amendment for which any Loan Party gave any consideration or benefit of any
kind (including any increased compensation, prepayment, shortening of
maturities, security or other credit support) during the continuation of
such failure or within 30 days before such failure would otherwise have
occurred);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (or would enable or permit, but for a waiver, consent or
amendment for which any Loan Party gave any consideration or benefit of any
kind (including any increased compensation, prepayment, shortening of
85
maturities, security or other credit support) during the continuation of
such event or condition or within 30 days before such event or condition
would otherwise have occurred) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
--------
Indebtedness that becomes due as a result of the voluntary sale or transfer
of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any Loan Party or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for any Loan Party or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(i) any Loan Party shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for any Loan Party or for a substantial
part of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) any Loan Party shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
86
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against any Loan Party or
any combination thereof and the same shall remain undischarged for a period
of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of any Loan Party to enforce any such
judgment;
(l) any Lien purported to be created under the Security Agreement
shall cease to be, or shall be asserted by the Borrower not to be, a valid
and perfected Lien on any Collateral, with the priority required by the
Security Agreement, except (i) as a result of the sale or other disposition
of the applicable Collateral in a transaction permitted under the Loan
Documents or (ii) with respect to Collateral with an aggregate Collateral
Cost not exceeding the lesser of $5,000,000 and 5% of the Collateral Cost
of all Collateral at the time;
(m) a Change in Control shall occur;
(n) the loss, revocation, suspension or material impairment of any
material FCC License shall occur; or
(o) an "Event of Default" (as defined in the Working Capital Credit
Agreement) shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
(including Deferred Interest) thereon and all fees and other obligations of the
Borrower accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal
87
of the Loans then outstanding, together with accrued interest (including
Deferred Interest) thereon and all fees and other obligations of the Borrower
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Agents
----------
Each of the Lenders hereby irrevocably appoints each Agent as its
agent and authorizes each Agent to take such actions on its behalf and to
exercise such powers as are delegated to such Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.
Any Person serving as an Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent, and such Person and its Affiliates may
accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were not
an Agent hereunder.
Neither Agent shall have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) neither Agent shall be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) neither Agent shall have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that such Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth in the Loan Documents,
neither Agent shall have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the Person serving as Agent
or any of its Affiliates in any capacity. Neither Agent shall be liable for any
action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) or in the absence
of its own
88
gross negligence or wilful misconduct. Each Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to
such Agent by the Borrower or a Lender, and neither Agent shall be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to such Agent.
Each Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Each Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by such Agent.
Each Agent and any such sub-agent may perform any and all its duties and
exercise its rights and powers through their respective Related Parties. The
exculpatory provisions of the preceding paragraphs shall apply to any such sub-
agent and to the Related Parties of each Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, an Agent may resign at any time by notifying the
Lenders and the Borrower. Upon any such resignation, the Required Lenders shall
have the right to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within
89
30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After an Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon either Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon either Agent or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at ▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of General Counsel (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy of any notice of a Default to Ropes & ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
90
Attention of ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Collateral Agent, to it at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Corporate Trust Division
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(b) if to the Administrative Agent, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Assistant Treasurer-Project Finance
(Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(c) if to Lucent, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, Attention of Assistant Treasurer-Project Finance (Telecopy No. (908)
559-1711); and
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
--------------------
either Agent or any Lender in exercising any right or power hereunder or under
any other Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Agents and the Lenders hereunder and under the other
Loan Documents are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of any Loan Document
or consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether an Agent or any Lender may have had notice or
knowledge of such Default at the time.
91
(b) Neither this Agreement nor the Security Agreement nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of the
Security Agreement, pursuant to an agreement or agreements in writing entered
into by the Collateral Agent and the Borrower with the consent of the Required
Lenders; provided that no such agreement shall (i) increase the Commitment of
--------
any Lender without the written consent of such Lender, (ii) reduce the principal
amount of any Loan or the amount of Deferred Interest thereon or reduce the rate
of interest on such Loan or Deferred Interest, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan or
any interest (including Deferred Interest) thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.16(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of "Required Lenders" or any other provision of
any Loan Document specifying the number or percentage of Lenders required to
waive, amend or modify any rights thereunder or make any determination or grant
any consent thereunder, without the written consent of each Lender, (vi) release
all or any substantial part of the Collateral from the Lien of the Security
Agreement (except as expressly provided in the Security Agreement), without the
written consent of each Lender, or (vii) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders holding
a majority in interest of the outstanding Loans, Deferred Interest thereon and
Commitments of each affected Class (in addition to any other consents required
by this sentence); provided further that no such agreement shall amend, modify
----------------
or otherwise affect the rights or duties of either Agent without the prior
written consent of such Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
-----------------------------------
shall pay (i) all reasonable costs and expenses incurred by Lucent and each
Agent, including the reasonable fees, charges and disbursements of counsel for
Lucent or the Agents, in connection with the preparation, execution and delivery
of the Loan Documents (including, in
92
the case of Lucent, the Commitment Letter dated April 27, 1998, between Lucent
and the Borrower, and the Bridge Note); provided that (A) the fees of Cravath,
--------
Swaine & ▇▇▇▇▇ shall be subject to the limitations set forth in the letter from
Cravath, Swaine & ▇▇▇▇▇ dated April 22, 1998, and (B) the payment of such costs
and expenses shall not be required prior to the earlier of the Effective Date
and the Effective Date (as defined in the Working Capital Credit Agreement) and
(ii) all reasonable costs and expenses incurred by either Agent or any Lender,
including the reasonable fees, charges and disbursements of any counsel for
either Agent or any Lender, in connection with (A) the enforcement or protection
of its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made hereunder, including all such
costs and expenses incurred during any workout, restructuring or negotiations in
respect of such Loans, and (B) in the case of Lucent and the Agents, the
administration of, and any amendments, modifications, waivers or supplements of
or to the provisions of, any of the Loan Documents.
(b) The Borrower shall indemnify each Agent and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
----------
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
--------
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses have resulted
from the gross negligence or wilful misconduct of such Indemnitee.
93
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to either Agent under paragraph (a) or (b) of this Section,
each Lender severally agrees to pay to such Agent such Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
--------
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against such Agent in its capacity as such.
For purposes hereof, a Lender's "pro rata share" shall be determined based upon
its share of the sum of the total outstanding Loans, Deferred Interest and
Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 30 days after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
-----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Subject to Section 9.04(h), any Lender may assign to one or more
assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans and Deferred
Interest at the time owing to it); provided that (i) in the case of an
--------
assignment that is not a Permitted Assignment, the Borrower must give its prior
written consent to such assignment (which consent shall not be unreasonably
withheld
94
or delayed), (ii) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, Loans and Deferred Interest of any Class, the
amount of the Commitment, Loans and Deferred Interest of such Class of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $10,000,000 unless the Borrower
otherwise consents, (iii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not be construed to
prohibit the assignment of a proportionate part of all of the assigning Lender's
rights and obligations in respect of (A) one or more Classes of Commitments,
Loans and Deferred Interest, (B) one or more Classes of Loans and Deferred
Interest separately from (or without assigning) Commitments or (C) one or more
Classes of Commitments separately from (or without assigning) Loans or Deferred
Interest, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, and (v) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; provided further that any consent of the Borrower
----------------
otherwise required under this paragraph shall not be required if an Event of
Default under clause (h) or (i) of Article VII has occurred and is continuing.
Subject to acceptance and recording thereof pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one
95
of its offices a copy of each Assignment and Acceptance delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and amount of Deferred
Interest owing to, each Lender pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive, and the
--------
Borrower, the Agents and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder) and any written consent to such assignment required by paragraph (b)
of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
-----------
under this Agreement (including all or a portion of its Commitments and the
Loans and Deferred Interest owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce the Loan Documents and
to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that such agreement or instrument may provide that such
--------
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrower agrees that each Participant shall be entitled to the
96
benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.16(c) as though it were a
Lender.
(f) A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 2.15 unless the Borrower is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.15(e) as
though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
(h) Notwithstanding the foregoing, Lucent hereby agrees that it will
not assign or sell a participation in (other than to any Affiliate of Lucent
that agrees to be bound by this paragraph) any of its rights as a Lender until
the earlier of (i) the date that is 18 months after the Effective Date and (ii)
the date on which Loans having an aggregate principal amount of $200,000,000
have been borrowed by the Borrower hereunder.
SECTION 9.05. Survival. All covenants, agreements, representations
---------
and warranties made by the Borrower in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that either Agent or any Lender may have had notice or knowledge of any Default
or incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement is outstanding and unpaid and so long as the
97
Commitments have not expired or terminated. The provisions of Sections 2.13,
2.14, 2.15 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Commitments or
the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
-----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to the
Borrower's agreement to cooperate with Lucent with respect to marketing, selling
or syndicating Loans and Commitments or with respect to fees payable to Lucent
or either Agent constitute the entire contract among the parties relating to the
subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
-------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
----------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender
98
or Affiliate to or for the credit or the account of the Borrower against any of
and all the obligations of the Borrower now or hereafter existing under this
Agreement held by such Lender, irrespective of whether or not such Lender shall
have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
--------
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent 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 or any other Loan Document shall affect any right that either Agent or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against the Borrower or its properties in
the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for
99
notices in Section 9.01. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
---------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
---------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Agents and the Lenders
----------------
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii)
becomes available to either Agent or any Lender on a nonconfidential basis from
a source
100
other than the Borrower. For the purposes of this Section, "Information" means
-----------
all information received from the Borrower relating to the Borrower or its
business, other than any such information that is publicly available or
available to either Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
-------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon
101
at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
ADVANCED RADIO TELECOM CORP.,
by
---------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as Collateral
Agent,
by
---------------------------------
Name:
Title:
LUCENT TECHNOLOGIES INC., individually and as
Administrative Agent,
by
---------------------------------
Name:
Title:
Schedule 2.01
TRANCHE A COMMITMENTS
---------------------
Lender Tranche A Commitment
------ --------------------
Amount
------
Lucent Technologies Inc. $200,000,000
Schedule 9.04
CERTAIN PERMITTED ASSIGNEES
---------------------------
ABN AMRO Bank, N.V.
Bank One, N.A.
Bank of America National Trust & Savings Association
Bank of Hawaii
The Bank of New York
Bank of Tokyo-Mitsubishi Trust Company
BankBoston, N.A.
Banque Nationale de Paris
Banque Paribas
Barclays Bank
Bayerische Vereinsbank AG
The Chase Manhattan Bank
Citibank, N.A.
Credit Suisse
Deutsche Bank AG
The Dai-ichi Kangyo Bank Ltd.
Dresdner Bank AG
First National Bank of Chicago
First Union National Bank
Fleet National Bank
The Fuji Bank Limited
General Electric Capital Corporation
Hong Kong & Shanghai Bank
Industrial Bank of Japan
ING Bank N.V.
Mellon Bank, ▇.▇.
▇▇▇▇▇▇ Guaranty Trust Company of New York
NationsBank, N.A.
NBD Bank
NewCourt Capital Corporation
The Northern Trust Company
PNC Bank, National Association
Royal Bank of Canada
Sakura
The Sanwa Bank Limited
Scotia Bank
Societe Generale
The Sumitomo Trust & Banking Co., Ltd.
Summit Bank
Swiss Bank Corporation
The Tokai Bank, Limited
Toronto Dominion Bank
The Toyo Trust and Banking Co., Ltd.
Union Bank of Switzerland
Wachovia Bank, ▇.▇.
▇▇▇▇▇ Fargo Bank
Westdeusche Landesbank
Yasuda