Exhibit 10.5
$55,715,294
CREDIT AGREEMENT
Dated as of October 6, 2003
Among
ITC/\DELTACOM, INC.
as Parent
INTERSTATE FIBERNET, INC.
as Borrower
THE SUBSIDIARY GUARANTORS NAMED HEREIN
as Subsidiary Guarantors
THE LENDERS NAMED HEREIN
as Lender Parties
GENERAL ELECTRIC CAPITAL CORPORATION
as Administrative Agent and
Collateral Agent
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS....................................2
SECTION 1.01. Certain Defined Terms...............................................2
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.........30
SECTION 1.03. Accounting Terms...................................................30
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES..................................30
SECTION 2.01. Restructuring......................................................30
SECTION 2.02. Intentionally Omitted..............................................31
SECTION 2.03. Repayment of Advances..............................................31
SECTION 2.04. Intentionally Omitted..............................................31
SECTION 2.05. Prepayments........................................................31
SECTION 2.06. Interest...........................................................33
SECTION 2.07. Fees...............................................................34
SECTION 2.08. Conversion of Advances.............................................34
SECTION 2.09. Increased Costs, Etc...............................................35
SECTION 2.10. Payments and Computations..........................................36
SECTION 2.11. Taxes..............................................................38
SECTION 2.12. Sharing of Payments, Etc...........................................40
SECTION 2.13. Intentionally omitted..............................................41
SECTION 2.14. Defaulting Lenders.................................................41
SECTION 2.15. Evidence of Debt; Register.........................................43
ARTICLE III CONDITIONS OF LENDING..............................................44
SECTION 3.01. Conditions Precedent to the Amendment Effective Date...............44
ARTICLE IV REPRESENTATIONS AND WARRANTIES.....................................49
SECTION 4.01. Representations and Warranties of the Borrower.....................49
ARTICLE V COVENANTS OF THE PARENT............................................56
SECTION 5.01. Affirmative Covenants..............................................56
SECTION 5.02. Negative Covenants.................................................63
SECTION 5.03. Reporting Requirements.............................................78
ARTICLE VI EVENTS OF DEFAULT..................................................83
SECTION 6.01. Events of Default..................................................83
ARTICLE VII GUARANTY...........................................................86
SECTION 7.01. Guaranty; Limitation of Liability..................................86
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SECTION 7.02. Guaranty Absolute..................................................86
SECTION 7.03. Waivers and Acknowledgments........................................88
SECTION 7.04. Subrogation........................................................88
SECTION 7.05. Guaranty Supplements...............................................89
SECTION 7.06. Subordination......................................................89
SECTION 7.07. Continuing Guaranty; Assignments...................................90
SECTION 7.08. Release of Guarantor...............................................90
ARTICLE VIII THE AGENT..........................................................91
SECTION 8.01. Authorization and Action...........................................91
SECTION 8.02. Agents Reliance, Etc...............................................91
SECTION 8.03. GECC and Affiliates................................................92
SECTION 8.04. Lender Party Credit Decision.......................................92
SECTION 8.05. Indemnification....................................................92
SECTION 8.06. Successor Agents...................................................93
SECTION 8.07. Appointment of Subagents...........................................93
ARTICLE IX MISCELLANEOUS......................................................94
SECTION 9.01. Amendments, Etc....................................................94
SECTION 9.02. Notices, Etc.......................................................94
SECTION 9.03. No Waiver; Remedies................................................95
SECTION 9.04. Costs and Expenses.................................................95
SECTION 9.05. Right of Set-off...................................................97
SECTION 9.06. Binding Effect.....................................................97
SECTION 9.07. Assignments and Participations.....................................97
SECTION 9.08. Execution in Counterparts.........................................100
SECTION 9.09. Confidentiality...................................................100
SECTION 9.10. Release of Collateral.............................................100
SECTION 9.11. Jurisdiction, Etc.................................................100
SECTION 9.12. Governing Law.....................................................101
SECTION 9.13. Waiver of Jury Trial..............................................101
SECTION 9.14. Waiver and Consent................................................101
SECTION 9.15. Release of the Agent and the Lenders..............................101
SECTION 9.16. FS Multimedia, Inc................................................102
SCHEDULES
Schedule I - Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(f) - Disclosed Litigation
Schedule 4.01(p) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(r) - Open Years; Unpaid Tax Liabilities; Adjusted Tax Bases
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Schedule 4.01(u) - Surviving Debt
Schedule 4.01(v) - Liens
Schedule 4.01(w) - Owned Real Property
Schedule 4.01(x) - Leased Real Property
Schedule 4.01(y) - Investments
Schedule 4.01(z) - Intellectual Property
Schedule 4.01(aa) - Material Contracts
EXHIBITS
Exhibit A-1 - Form of Term Note
Exhibit B - Intentionally omitted
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Intercreditor and Subordination Agreement
Exhibit F - Form of Solvency Certificate
Exhibit G - Form of Opinion of Counsel to the Loan Parties
Exhibit H - Intentionally omitted
Exhibit I - Form of Guaranty Supplement
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Exhibit 10.7
Execution Copy
CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of October 6, 2003 (this "Agreement"),
among ITC/\DeltaCom, Inc., a Delaware corporation (the "Parent"), Interstate
FiberNet, Inc., a Delaware corporation (the "Borrower"), the subsidiary
guarantors listed on the signature page hereof, the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof (the "Lender Parties"), General Electric Capital Corporation, as
administrative agent (together with any successor administrative agent appointed
pursuant to Article VIII, the "Administrative Agent") for the Lender Parties and
as collateral agent (together with any successor collateral agent appointed
pursuant to Article VIII, the "Collateral Agent" and, together with the
Administrative Agent, the "Agents").
RECITALS:
WHEREAS, pursuant to the Credit Agreement, dated as of March 30, 2001,
as amended (the "Original BTI Credit Agreement"), among Business Telecom, Inc.
("BTI, Inc."), as Borrower, BTI Telecom Corp. ("BTI"), Business Telecom of
Virginia, Inc. and FS Multimedia, Inc., as Guarantors, General Electric Capital
Corporation, as Agent and Lender, and the Lender Parties, the Lender Parties
made available to BTI, Inc. a term loan in the maximum principal amount of
$89,000,000 secured by all of the assets of BTI, Inc. and guarantied by the
Credit Parties (as defined in the Original BTI Credit Agreement), which guaranty
is secured, in part, by a pledge of the stock of BTI, Inc.;
WHEREAS, pursuant to the Credit Agreement, dated as of April 5, 2000,
(the "Original ITCD Credit Agreement"), among the Borrower, the Parent, the
subsidiary guarantors listed on the signature pages thereof, and the banks,
financial institutions and other institutional lenders from time to time parties
thereto as lenders or agents, such lenders made available to the Borrower
$160,000,000, consisting of $100,000,000 under the Xxxxxxx 0 Xxxx X Facility, as
defined in the Original ITCD Agreement, and $60,000,000 under the Xxxxxxx 0 Xxxx
X Facility, as defined in the Original ITCD Agreement in order to finance (a)
working capital and certain capital expenditures (including the build-out of the
collocation and data services businesses) and other general corporate purposes
and (b) the purchase of certain equipment, respectively;
WHEREAS, the Parent, the Borrower, the subsidiary guarantors listed on
the signature pages thereof, and the banks, financial institutions and other
institutional lenders from time to time parties thereto as lenders or agents,
entered into an amendment and restatement (the "First Amended ITCD Credit
Agreement"), dated as of October 29, 2002, of the Original ITCD Credit
Agreement;
WHEREAS, the Board of Directors of the Parent has determined that it
is advisable and in the best interests of the Parent's stockholders, and
consistent with and in furtherance of the Parent's business strategies and
goals, for the Parent to acquire indirectly all of the outstanding shares of BTI
through the merger of 8DBC1 Corp., a North Carolina corporation
and wholly owned direct subsidiary of the Parent ("Merger Co."), with and into
BTI (the "Merger") upon the terms and subject to the conditions set forth in the
Agreement and Plan of Merger, dated as of July 2, 2003, among BTI, the parties
identified on the signature pages thereto as the "WCAS Securityholders," the
Parent and Merger Co. (as amended, the "Merger Agreement");
WHEREAS, the Board of Directors of BTI and the Board of Directors of
Merger Co. have each determined that it is advisable and in the best interests
of their shareholders, and consistent with and in furtherance of their business
strategies and goals, for the Parent to acquire indirectly all of the
outstanding shares of BTI through the Merger upon the terms and subject to the
conditions set forth in the Merger Agreement;
WHEREAS, immediately following the consummation of the Merger, the
Borrower and BTI will each be a direct wholly owned subsidiary of the Parent and
will each be a parent company of wholly owned subsidiaries;
WHEREAS, in connection with the closing of the transactions
contemplated by the Merger Agreement, the aggregate principal amount of the
loans advanced to the Borrower by the lenders pursuant to the First Amended ITCD
Credit Agreement and $30,000,000 of the aggregate principal amount of the loans
advanced to BTI, Inc. pursuant to the Original BTI Credit Agreement shall be
assumed, restructured, continued, converted and consolidated pursuant to an
amendment and restatement of the First Amended ITCD Credit Agreement; and
WHEREAS, in connection with the closing of the transactions
contemplated by the Merger Agreement, $55,715,294 aggregate principal amount of
the loans advanced to BTI, Inc. by the Lenders pursuant to the Original BTI
Credit Agreement (which amounts advanced to BTI, Inc. shall be deemed to be a
Term Borrowing for all purposes hereunder) shall be assumed, restructured,
continued, converted and consolidated, pursuant to this Agreement;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree that, as of the Amendment Effective Date, to the
extent not otherwise assumed, restructured, continued, converted and
consolidated pursuant to an amendment and restatement of the First Amended ITCD
Credit Agreement, the Original BTI Credit Agreement shall be replaced in its
entirety as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Additional Guarantor" has the meaning specified in Section 7.05.
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"Administrative Agent" has the meaning specified in the preamble of
this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent as the Administrative Agent shall specify in writing
to the Lender Parties.
"Advance" means a Term Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the preamble of this Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc. (the "Master Agreement"), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries to
its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement
was being terminated early on such date of determination, (ii) such Loan
Party or Subsidiary was the sole "Affected Party," and (iii) the
Administrative Agent was the sole party determining such payment amount
(with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); or (b) in the case of a Hedge
Agreement traded on an exchange, the xxxx-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party to such Hedge Agreement determined
by the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination; or (c) in all other cases, the
xxxx-to-market value of such Hedge Agreement, which will be the unrealized
loss on such Hedge Agreement to the Loan Party or Subsidiary of a Loan
Party to such Hedge Agreement determined by the Administrative Agent as the
amount, if any, by which (i) the present value of the future cash flows to
be paid by such Loan Party or Subsidiary exceeds (ii) the present value of
the future cash flows to be received by such Loan Party or Subsidiary
pursuant to such Hedge Agreement; capitalized terms used and not otherwise
defined in this definition shall have the respective meanings set forth in
the above described Master Agreement.
"Amendment Effective Date" means the first date on which the
conditions set forth in Section 3.01 shall have been satisfied.
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"Applicable Base Rate Margin" means the Applicable Eurodollar Rate
Margin then in effect, less 1.00%.
"Applicable Eurodollar Rate Margin" means initially 4.25%, subject to
adjustment each fiscal quarter according to the following, determined by
the Senior Debt Ratio as measured on the last day of each fiscal quarter
for the period of the four consecutive fiscal quarters then ended,
commencing December 31, 2003, and as certified by the Borrower to the
Agents and the Lender Parties in the Financial Covenants Certificate:
Senior Debt Ratio Applicable Eurodollar Rate Margin
----------------- ---------------------------------
** 4.00x 5.50%
** 3.50x 5.00%
** 3.25x 4.50%
** 3.00x 4.25%
** 2.50x 4.00%
* 2.50x 3.75%
* Less than
** More than or equal to
For purposes of computing the applicable Eurodollar Rate Margin, EBITDA may
be adjusted pursuant to Section 5.02(q)(ii)(B).
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Appropriate Lender" means, at any time, with respect to the Term
Facility, a Lender that has a Commitment with respect to the Term Facility
at such time.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.07 and in substantially
the form of Exhibit C hereto.
"Assumed BTI Debt" means (a) the Debt evidenced by the Xxxxxxx 0 Xxxx
X Advances, (as provided and defined in the First Lien Credit Agreement),
(b) the Debt under the Loan Documents, (c) unsecured Debt in the principal
amount of $18,525,000 evidenced by the 10 1/2% Senior Notes due 2007 of BTI
and (d) unsecured Debt in the
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principal amount of $7,100,000 evidenced by the note payable by BTI, Inc.
to the order of P&H, Inc.
"Bankruptcy Code" means title 11 of the United States Code, as
amended.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate listed in the "Money Rates" section of The Wall
Street Journal as the "prime rate"; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"Benefit Plan Exchange Offer" means any transaction in which the
Parent acquires and/or retires Equity Plan Securities in exchange for other
Equity Plan Securities.
"Board Designees" means individuals whose nomination for election,
appointment or election as directors of the Parent is effectuated pursuant
to (a) the Governance Agreement or (b) the Series A Certificate of
Designation or the Series B Certificate of Designation.
"Borrower" has the meaning specified in the preamble of this
Agreement.
"Borrowing" means a Term Borrowing.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"BTI" has the meaning specified in recitals of parties to this
Agreement.
"BTI, Inc." has the meaning specified in recitals of parties to this
Agreement.
"Capital Expenditures" means, for any Person for any period, the sum
of, without duplication, (a) all expenditures made, directly or indirectly,
by such Person or any of its Subsidiaries during such period for equipment,
fixed assets, real property or improvements, or for replacements or
substitutions therefor or additions thereto, that have been or should be,
in accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person or have a useful
life of more than one year plus (b) the aggregate principal amount of all
Debt (including Obligations under Capitalized Leases) assumed or Incurred
in connection with any such expenditures. For purposes of this definition,
the purchase price of equipment that is purchased simultaneously with the
trade-in of existing equipment or with insurance proceeds shall
5
be included in Capital Expenditures only to the extent of the gross amount
of such purchase price less the credit granted by the seller of such
equipment for the equipment being traded in at such time or the amount of
such proceeds, as the case may be.
"Capital Lease Amendment" means the Amendment to the Schedules and
Leases, dated as of October 29, 2002, among NTFC, General Electric Capital
Corporation, solely in its capacity as lessor, the Borrower and
ITC/\DeltaCom Communications, Inc.
"Capital Lease Amendment Payments" means one or more payments of any
amount of the maximum aggregate payment of $6,000,000 referred to in
Section 1(a)(ii) of the Capital Lease Amendment.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether outstanding on the
date of this Agreement or issued thereafter, including, without limitation,
all Common Stock and Preferred Stock.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent owned by
the Parent or any of its Subsidiaries free and clear of all Liens other
than Liens created under the Collateral Documents and having a maturity of
not greater than 360 days from the date of issuance thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States; (b)
insured certificates of deposit of or time deposits with any commercial
bank that is a Lender Party or a member of the Federal Reserve System,
issues (or the parent of which issues) commercial paper rated as described
in clause (c) below, is organized under the laws of the United States or
any State thereof and has combined capital and surplus of at least $1
billion; (c) commercial paper in an aggregate amount of no more than
$160,000,000 per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States and rated at
least "P-1" (or the then equivalent grade) by Xxxxx'x Investors Service,
Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's, a
division of The XxXxxx-Xxxx Companies, Inc.; or (d) obligations issued by
any state of the United States of America or any municipality or other
political subdivision of any such state or any public instrumentality
thereof having, at the time of acquisition, the highest rating obtainable
from any of Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
Inc., Xxxxx'x Investors Service, Inc. or Fitch Ratings, Inc., including,
without limitation, auction rate certificates.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
6
"Change of Control" means the occurrence on any date after the
Amendment Effective Date of any of the following: (a) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended) becomes the "beneficial owner" (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under
the Securities Exchange Act of 1934, as amended) of more than 35% of the
total voting power of the Voting Stock of the Parent on a Fully Diluted
Basis and such ownership represents a greater percentage of the total
voting power of the Voting Stock of the Parent, on a Fully Diluted Basis,
than the percentage of the total voting power of the Voting Stock of the
Parent, on a Fully Diluted Basis, beneficially owned (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) by the Existing Stockholders on such
date; or (b) individuals who on the Amendment Effective Date constitute the
board of directors of the Parent (together with any new directors whose
appointment by the board of directors of the Parent or whose nomination by
the board of directors of the Parent for election by the Parent's
stockholders was approved by a vote of at least a majority of the members
of the board of directors then in office who either were members of the
board of directors on the Amendment Effective Date or whose appointment or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the board of directors then in
office; or (c) the Parent shall cease to own 100% of the Equity Interests
of the Borrower. For purposes of clause (b) of this definition, all Board
Designees shall be deemed to be members of the board of directors of the
Parent whose appointment or nomination for election was approved in the
manner specified in clause (b).
"Chief Financial Officer" means, with respect to any Loan Party, the
officer of such Loan Party designated by such Loan Party as its chief
financial officer or, if there is no such officer designation, the officer
of such Loan Party designated by such Loan Party as its principal
accounting officer.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties, and shall not include any equipment or other property pledged as
collateral to secure either of the GECC Capital Lease or the NTFC Capital
Lease.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Agent" has the meaning specified in the preamble of this
Agreement.
"Collateral Documents" means the Security Agreement, the Intercreditor
and Subordination Agreement, the Mortgages and any other agreement that
creates or purports to create a Lien in favor of the Collateral Agent for
the benefit of the Secured Parties.
"Commitment" means a Term Commitment.
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"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's equity, other than Preferred Stock
of such Person, whether outstanding on the date of this Agreement or issued
thereafter, including, without limitation, all series and classes of such
common stock.
"Confidential Information" means information that any Loan Party
furnishes to any Agent or any Lender Party on a confidential basis, but
does not include any such information that is or becomes generally
available to the public or that is or becomes available to such Agent or
such Lender Party from a source other than the Loan Parties which such
Agent or such Lender Party do not have reason to believe is confidential
information. Notwithstanding anything to the contrary set forth in this
definition or in this Agreement "Confidential Information" shall not
include information relating to the tax structure or tax treatment of any
structure or transaction and all materials of any kind (including opinions
and other tax analyses) that are provided to the party relating to such tax
treatment and tax structure, excluding information the confidentiality of
which is reasonably necessary to comply with U.S. Federal or state
securities laws, it being the intent of the foregoing to cause any
structure or transaction not to be treated as having been offered under
conditions of confidentiality for purposes of Section 1.6011-4(b)(3) (or
any successor provision) of the Treasury Regulations promulgated under
Section 6011 of the Internal Revenue Code, and this definition shall be
construed in a manner consistent with such purpose.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, (a)
the direct or indirect guarantee, endorsement (other than for collection or
deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) any Obligation of such Person, whether or
not contingent, (i) to purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for the purchase or payment of any such primary obligation
or (B) to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation
or (iv) otherwise to assure or hold harmless the holder of such primary
obligation against loss in respect thereof. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably
8
anticipated liability in respect thereof (assuming such Person is required
to perform thereunder), as determined by such Person in good faith.
"Contingent Payments" means any one or more payments in an aggregate
amount not to exceed $21,900,000 made by a Loan Party upon the occurrence
of an "Event" as defined in, and pursuant to, Section 32.2 of the Amendment
to the Revised and Restated Fiber Optic Facilities and Services Agreement,
dated as of August 1, 2000, as amended, between Southern Telecom, Inc. on
behalf of itself and as agent for the other parties named therein, and the
Borrower.
"Conversion," "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.08 or 2.09.
"Conversion Shares" means the Common Stock or other securities issued
or issuable upon conversion of the Series A Preferred Stock.
"Current Assets" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a reserve
is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such Person
that by its terms is payable on demand or matures within one year after the
date of determination (excluding any Debt renewable or extendible, at the
option of such Person, to a date more than one year from such date or
arising under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date), (b) all amounts of Funded Debt of such Person required to
be paid or prepaid within one year after such date and (c) all other items
(including taxes accrued as estimated) that in accordance with GAAP would
be classified as current liabilities of such Person.
"Debt" of any Person means, at any time without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of such
Person for the deferred purchase price of property or services (other than
trade payables not overdue by more than 90 days incurred in the ordinary
course of such Person's business, unless such trade payables overdue by
more than 90 days are contested in good faith by such Person), (c) all
Obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with respect
to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Obligations of
such Person as lessee under Capitalized Leases, (f) all Obligations of such
Person under acceptance, letter of credit or similar facilities, (g) all
Obligations of such Person to Redeem any Equity Interests (other than
Reorganization Securities or Merger Agreement Securities) in such Person or
in any other Person, or to Redeem options, warrants or other rights to
purchase or otherwise acquire such Equity Interests (other than
Reorganization Securities or Merger Agreement Securities), before the date
which is six months after the
9
Termination Date (provided, that if the exercise of the right to Redeem
such Equity Interests or options, warrants or other rights is at the option
of such Person under the terms of such Equity Interests or otherwise, the
date of such Person's exercise, if any, of such right to Redeem shall be
the date on which such Person shall first be deemed to have an Obligation
to Redeem such Equity Interests or options, warrants or other rights for
purposes of this definition), valued in the case of Preferred Interests at
the stated liquidation preference of such Preferred Interests plus accrued
and unpaid dividends from time to time, (h) all Obligations of such Person
in respect of Hedge Agreements, valued at the Agreement Value thereof, (i)
all Contingent Obligations of such Person and (j) all indebtedness and
other payment Obligations referred to in clauses (a) through (i) above of
another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness or other payment Obligations.
Notwithstanding clause (g) of this definition, the Obligations referred to
in such clause (g) as constituting "Debt" shall not include Obligations of
such Person to Redeem Equity Interests in such Person (or to Redeem
options, warrants or other rights to purchase or otherwise acquire such
Equity Interests) in exchange for, or out of the proceeds of a
substantially concurrent offering of, other Equity Interests (or options,
warrants or other rights to purchase or otherwise acquire such other Equity
Interests) in such Person, provided, that any Obligations of such Person to
Redeem such other Equity Interests (or to Redeem options, warrants or other
rights to purchase or acquire such other Equity Interests) shall be subject
to the provisions of such clause (g).
"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person, provided, however, that, notwithstanding the
foregoing, "Debt for Borrowed Money" shall not include any Preferred
Interests (including, without limitation, with respect to the Loan Parties,
the Series A Preferred Stock and the Series B Preferred Stock) or any
dividends accrued or paid or payable with respect to Preferred Interests.
"Debt Rating" has the meaning set forth in Section 5.01(n)(ii).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) any other Lender Party pursuant to Section 2.12 to purchase any
participation in Advances owing to such other Lender Party and (b) any
Agent pursuant to Section 8.05 to reimburse such Agent for such Lender
Party's ratable share of any amount required to be paid by the Lender
Parties to such Agent. In the event that a portion of a Defaulted Amount
shall be deemed paid pursuant to Section 2.14(b), the remaining portion of
such Defaulted Amount shall be considered a Defaulted Amount
10
originally required to be paid hereunder or under any other Loan Document
on the same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Amount or (b) shall take any action or be the
subject of any action or proceeding of a type described in Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section 3.01(f).
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"EBITDA" means, for any Person for any period, the sum, determined on
a Consolidated basis, of (a) net income (or net loss) after eliminating
extraordinary and/or non-recurring items to the extent included in net
income (except as provided in this definition), (b) interest expense, (c)
income tax expense, (d) depreciation expense, (e) amortization expense, (f)
the aggregate of all non-cash charges deducted in arriving at net income in
clause (a) above, including, but not limited to, asset impairment charges,
and (g) any restructuring charges (i) that are recognized and paid after
August 31, 2002 within four months of the applicable restructuring event,
and (ii) to the extent not included in clause (i) above, relating to the
Merger (with respect to the Parent and its Subsidiaries) or any other
merger or acquisition permitted under this Agreement that is recognized and
paid after the Amendment Effective Date within nine months of the
consummation of the Merger or other applicable merger or acquisition, and
which has a benefit over a twelve-month period that exceeds such charge, in
each case determined in accordance with GAAP for such period (including,
without limitation, Emerging Issues Task Force Issue 94-3 and Statement of
Financial Accounting Standards No. 146).
"Eligible Assignee" means any commercial bank or financial institution
(including, without limitation, any fund that regularly invests in loans
similar to the Advances) as approved (so long as no Default has occurred
and is continuing at the time of the relevant assignment pursuant to
Section 9.07) by the Borrower (such approval not to be unreasonably
withheld or delayed); provided, however, that neither any Loan Party nor
any Affiliate of a Loan Party shall qualify as an Eligible Assignee under
this definition.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or
11
regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"Equity Plan Securities" means any Equity Interests awarded, granted,
sold or issued pursuant to any stock option, restricted stock, stock
incentive, deferred compensation, profit sharing, defined benefit, defined
contribution or other benefit plan of any Loan Party or any Subsidiary of
any Loan Party.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan
12
amendment referred to in Section 4041(e) of ERISA), excluding, however, a
"standard termination" as defined in Section 4041(a)(2) of ERISA; (d) the
cessation of operations at a facility of any Loan Party or any ERISA
Affiliate in the circumstances described in Section 4062(e) of ERISA; (e)
the withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial employer,
as defined in Section 4001(a)(2) of ERISA; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) the institution by the PBGC of proceedings to terminate a Plan pursuant
to Section 4042 of ERISA, or the occurrence of any event or condition
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing
on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in U.S. dollars at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a period
equal to such Interest Period (provided, that, if for any reason such rate
is not available, the term "Eurodollar Rate" shall mean, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if
more than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates) by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve
13
System (or any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of
or including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurodollar Rate Advances is determined) having a term
equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period,
(a) the sum of:
(i) Consolidated net income (or loss) of the Parent and its
Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges deducted
in arriving at such Consolidated net income (or loss) plus
(iii) if there was a net increase in Consolidated Current
Liabilities of the Parent and its Subsidiaries during such
period, the amount of such net increase plus
(iv) if there was a net decrease in Consolidated Current
Assets (excluding cash and Cash Equivalents) of the Parent and
its Subsidiaries during such period, the amount of such net
decrease less
(b) the sum of (without duplication):
(i) the aggregate amount of all non-cash credits included in
arriving at such Consolidated net income (or loss) plus
(ii) if there was a net decrease in Consolidated Current
Liabilities of the Parent and its Subsidiaries during such
period, the amount of such net decrease plus
(iii) if there was a net increase in Consolidated Current
Assets (excluding cash and Cash Equivalents) of the Parent and
its Subsidiaries during such period, the amount of such net
increase plus
(iv) Capital Expenditures of the Parent and its Subsidiaries
during such period, provided, however, that such Capital
Expenditures are made in the telecommunications industry or
ancillary or related industry plus
14
(v) the Capital Lease Amendment Payments and all scheduled
payments of principal (without regard to any prepayments)
outstanding under the GECC Capital Lease and the NTFC Capital
Lease plus
(vi) all payments made pursuant to Sections 2.03(a),
2.03(b), 2.03(c) and 2.05(a) plus
(vii) all payments of principal under the First Lien Loan
Documents and the Assumed BTI Debt.
Notwithstanding anything contained in this Agreement to the contrary, any
financial statement effect related to the deposit of funds into, or the
withdrawal of funds from, the segregated account referred to in Section
5.01(n)(iv) shall be excluded from Excess Cash Flow.
"Existing Debt Refinancing" has the meaning set forth in Section
5.02(b)(vii).
"Existing Stockholders" means the WCAS Securityholders and their
Affiliates. For purposes of this definition, "Affiliate" means, as applied
to any Person, any other Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, such
Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under
common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business,
including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu thereof), indemnity
payments and any purchase price adjustment received in connection with any
purchase agreement; provided, however, that an Extraordinary Receipt shall
not include cash receipts, awards or payments received from proceeds of
insurance, condemnation awards (or payments in lieu thereof) or indemnity
payments to the extent that such proceeds, awards or payments (a) are in
respect of loss or damage to equipment pledged as collateral to secure, or
are otherwise properly attributable to, either of the GECC Capital Lease or
the NTFC Capital Lease (and such cash receipts, awards or payments shall be
held in a segregated account in trust for the benefit of General Electric
Capital Corporation (solely in its capacity as lessor under the GECC
Capital Lease) and NTFC to be remitted to General Electric Capital
Corporation (solely in its capacity as lessor under the GECC Capital Lease)
and NTFC in accordance with the GECC Capital Lease and the NTFC Capital
Lease), or (b) are in respect of loss or damage to fixed assets, real
property or equipment (other than equipment pledged to secure either of the
GECC Capital Lease or the NTFC Capital Lease) and are applied to replace or
repair such fixed assets, real property or equipment in respect of which
such proceeds, awards or payments were received in accordance with the
terms of the Loan Documents (or to reimburse such Person for expenditures
15
previously incurred on account of such replacement or repair), provided,
that such proceeds, awards or payments (i) are immediately deposited into
an account held by the Collateral Agent on behalf of the Lenders, and (ii)
are applied within twelve months after the occurrence of such damage or
loss, provided, that the Borrower shall have delivered documentation
reasonably satisfactory to the Administrative Agent evidencing the cost and
proposed use of any equipment repaired or replaced pursuant thereto, or (c)
are received by any Person in respect of any third party claim against such
Person and applied to pay (or to reimburse such Person for its prior
payment of) such claim and the costs and expenses of such Person with
respect thereto, or (d) are received by any Person by way of reimbursement
or indemnification of such Person for costs and expenses incurred by such
Person. Any proceeds that are properly attributable to the GECC Capital
Lease or the NTFC Capital Lease shall not constitute "Extraordinary
Receipts."
"Facility" means the Term Facility.
"FCC" means the Federal Communications Commission, or any governmental
agency succeeding to the functions thereof.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Financial Covenants Certificate" means the certificate delivered by
the Borrower and certified by the Chief Financial Officer of the Borrower
and containing the information specified in the definition of "Applicable
Eurodollar Rate Margin" and Sections 2.05(b)(v), 2.05(b)(vi), 5.02(b),
5.02(q), 5.03(b)(iii) and (iv), 5.03(c)(iii) and 5.03(q)(v), as applicable,
and demonstrating compliance with the applicable covenants.
"First Lien Collateral Agent" means Xxxxx Fargo Bank Minnesota,
National Association and any successor collateral agent appointed pursuant
to Article VIII of the First Lien Credit Agreement.
"First Lien Credit Agreement" means the Second Amended and Restated
Credit Agreement, dated as of even date herewith, among the Parent, the
Borrower, the subsidiary guarantors listed on the signature pages thereof,
the First Lien Lenders and the other parties thereto.
"First Lien Facilities" means the Facilities (as provided and defined
in the First Lien Credit Agreement).
16
"First Lien Lenders" means the Lenders (as provided and defined in the
First Lien Credit Agreement).
"First Lien Loan Documents" means the Loan Documents (as provided and
defined in the First Lien Credit Agreement).
"First Lien Security Agreement" means the Security Agreement (as
provided and defined in the First Lien Credit Agreement).
"Fiscal Year" means a Fiscal Year of the Parent and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Fully Diluted Basis" means, as of any date of determination, the sum
of (i) the number of shares of Voting Stock outstanding as of such date of
determination plus (ii) the number of shares of Voting Stock issuable upon
the exercise, conversion or exchange of all then-outstanding warrants,
options, convertible Capital Stock or indebtedness, exchangeable Capital
Stock or indebtedness, or other rights exercisable for or convertible or
exchangeable into, directly or indirectly, shares of Voting Stock, whether
at the time of issue or upon the passage of time or upon the occurrence of
some future event, and whether or not in the money as of such date of
determination.
"Funded Debt" of any Person means Debt of such Person that by its
terms matures more than one year after the date of its creation or matures
within one year from such date but is renewable or extendible, at the
option of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
after such date, including, without limitation, all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after the
date of its creation.
"GAAP" has the meaning specified in Section 1.03.
"GECC" means General Electric Capital Corporation solely in its
capacity as a Lender Party or Administrative Agent and Collateral Agent
under this Agreement or as a Lender Party as provided and defined in the
First Lien Credit Agreement, but not in its capacity as lessor under the
GECC Capital Lease.
"GECC Capital Lease" means the Master Lease Agreement, dated December
31, 2001, and the schedules and annexes thereto, as amended, between
General Electric Capital Corporation, solely in its capacity as lessor, and
ITC/\DeltaCom Communications, Inc.
"Governance Agreement" means the Governance Agreement, dated as of
July 2, 2003, as amended, among the Parent, WCAS Capital Partners III,
L.P., Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P., WCAS Information
Partners, L.P. and certain individual investors and trusts listed on the
signature pages thereto.
"Guaranteed Obligations" has the meaning specified in Section 7.01(a).
17
"Guaranties" means the Parent Guaranty and the Subsidiary Guaranties.
"Guarantors" means the Parent and the Subsidiary Guarantors.
"Guaranty Supplement" has the meaning specified in Section 7.05.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other hedging agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender Party
in its capacity as a party to a Secured Hedge Agreement.
"IFN" means Interstate FiberNet, Inc., the Borrower under this
Agreement.
"Incur" means, with respect to any Debt, to incur, create, issue,
assume, guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Debt.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Intercreditor and Subordination Agreement" means the Intercreditor
and Subordination Agreement, dated as of the date hereof, among the Agents,
the Lender Parties, the Agents as provided and defined in the First Lien
Credit Agreement, the Lender Parties as provided and defined in the First
Lien Credit Agreement, and the Loan Parties.
"Interest Coverage Ratio" means, at any date of determination, the
ratio of (a) Consolidated EBITDA to (b) cash interest paid in respect of
all Debt for Borrowed Money, in each case, of or by the Parent and its
Subsidiaries during the two fiscal quarter periods ending on the last date
of the most recently ended fiscal quarter.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such
18
Interest Period shall be one, two, three or six months, as the Borrower
may, upon notice received by the Administrative Agent not later than 11:00
A.M. (New York City time) on the third Business Day prior to the first day
of such Interest Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period with respect
to any Eurodollar Rate Advance under a Facility that ends after any
principal repayment installment date for such Facility unless, after
giving effect to such selection, the aggregate principal amount of
Base Rate Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment installment
date for such Facility shall be at least equal to the aggregate
principal amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for Eurodollar
Rate Advances comprising part of the same Borrowing shall be of the
same duration;
(c) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of the
Security Agreement.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation and any
arrangement pursuant to which the investor Incurs Debt of the types
referred to in clause (i) or (j) of the definition of "Debt" in respect of
such Person.
"Lender Parties" has the meaning specified in the recitals of parties
to this Agreement.
19
"Lenders" means the Lender Parties and each Person that shall become a
Lender hereunder pursuant to Section 9.07 for so long as such Lender Party
or Person, as the case may be, shall be a party to this Agreement.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property, but excluding any lien, security interest or other
charge or encumbrance of any kind or other type of preferential arrangement
in respect of Ordinary Course Obligations in an aggregate amount up to the
sum of (x) $8,000,000, plus (y) if the Borrower shall make one or more
optional prepayments of Advances pursuant to Section 2.05(a), the amount,
up to $2,000,000, equal to the aggregate amount of such optional
prepayments, provided, that the maximum aggregate amount of the Ordinary
Course Obligations excluded from this definition shall not exceed
$10,000,000.
"Loan Documents" means (a) for purposes of this Agreement and the
Notes and any amendment, supplement or modification hereof or thereof, (i)
this Agreement, (ii) the Notes and (iii) the Collateral Documents and (b)
for purposes of the Collateral Documents and for all other purposes other
than for purposes of this Agreement and the Notes, (i) this Agreement, (ii)
the Notes, (iii) the Collateral Documents and (iv) each Secured Hedge
Agreement.
"Loan Parties" means the Borrower and the Guarantors.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Parent and its Subsidiaries, taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, BTI and the Subsidiaries of the
Borrower and BTI, taken as a whole, (b) the rights and remedies of the
Agents or any Lender Party under any Loan Document or (c) the ability of
any Loan Party to perform its Obligations under any Loan Document to which
it is or is to be a party.
"Material Contract" means, with respect to any Person, each contract
to which such Person is a party involving aggregate consideration payable
to or by such Person of $10,000,000 or more in any year or otherwise
material to the business, condition (financial or otherwise), operations,
performance, properties or prospects of such Person. With respect to the
Loan Parties, the Merger Agreement shall be deemed to be a Material
Contract.
"MEGAPOP Transactions" means the transactions contemplated by (a) the
Telecommunications Systems Agreement, dated as of April 7, 2003, as
amended, between the Borrower and Mississippi Economic Growth Alliance &
Point of Presence,
20
Inc., (b) the Marketing and Operating Agreement, dated as of April 7, 2003,
as amended, between the Borrower and Mississippi Economic Growth Alliance &
Point of Presence, Inc. and (c) the Purchase Agreement, dated as of April
7, 2003, as amended, between the Borrower and Mississippi Economic Growth
Alliance & Point of Presence, Inc.
"Merger" has the meaning specified in the recitals of parties to this
Agreement.
"Merger Agreement" has the meaning specified in the recitals of
parties to this Agreement.
"Merger Agreement Common Stock" means (a) the Common Stock of the
Parent issued or issuable pursuant to the Merger Agreement, (b) the Series
B Conversion Shares and (c) the Series B Warrant Shares.
"Merger Agreement Securities" means (a) the Merger Agreement Common
Stock, (b) the Series B Preferred Stock and (c) the Series B Warrants.
"Merger Closing Date" means the date on which the effective time of
the Merger shall occur.
"Merger Co." has the meaning specified in the recitals of parties to
this Agreement.
"Merger Transactions" means the transactions contemplated by the
Merger Agreement, including, without limitation, (a) the Merger and (b) the
issuance of the Merger Agreement Securities by the Parent.
"Minimum Required Synergies" means gross capital expense reductions,
gross cost of services expense reductions and other gross operating expense
reductions in an aggregate amount of at least $37,000,000 realized since
November 30, 2002 by the Loan Parties and arising from or related to the
Merger Transactions.
"Mortgage Policies" has the meaning specified in Section
5.01(n)(i)(B).
"Mortgages" has the meaning specified in Section 5.01(n)(i).
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
21
"Net Advance Payments" means prepayments of the purchase price or
other consideration, net of brokers' and finders' fees and commissions,
reasonable legal fees and other reasonable transaction costs.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset by any Person (excluding (A) Equity
Interests, (B) property properly attributable to the GECC Capital Lease or
the NTFC Capital Lease and (C) payments made pursuant to Section
1(a)(ii)(A) of the Capital Lease Amendment), or any Extraordinary Receipt
received by or paid to or for the account of any Person, the aggregate
amount of cash received from time to time (whether as initial consideration
or through payment or disposition of deferred consideration) by or on
behalf of such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees and expenses,
finder's fees and other similar fees and commissions and out-of-pocket
costs and expenses, and (b) the amount of taxes payable in connection with
or as a result of such transaction, in each case to the extent, but only to
the extent, that the amounts so deducted are, at the time of receipt of
such cash, actually paid to a Person that is not an Affiliate of such
Person and are properly attributable to such transaction or to the asset
that is the subject thereof; provided, however, that in the case of taxes
that are deductible under clause (b) above but for the fact that, at the
time of receipt of such cash, such taxes have not been actually paid or are
not then payable, such Loan Party or such Subsidiary may deduct an amount
(the "Reserved Amount") equal to the amount reserved in accordance with
GAAP for such Loan Party's or such Subsidiary's reasonable estimate of such
taxes, other than taxes for which such Loan Party or such Subsidiary is
indemnified; provided, further, however, that, at the time such taxes are
paid, an amount equal to the amount, if any, by which the Reserved Amount
for such taxes exceeds the amount of such taxes actually paid shall
constitute "Net Cash Proceeds" of the type for which such taxes were
reserved for all purposes hereunder; and provided, further, still, that Net
Cash Proceeds from (i) the sale, lease, transfer or other disposition of
any asset or (ii) Extraordinary Receipts shall not include up to $500,000
of cash proceeds in the aggregate received in connection with one or more
such transactions or receipts, as the case may be, to the extent such cash
proceeds are applied to replace the asset in respect of which such cash
proceeds were received or are otherwise invested in such Person's business,
so long as application is made within twelve months after the occurrence of
such sale, lease, transfer or other disposition or receipt, as the case may
be.
"Note" means a Term Note.
"NPL" means the National Priorities List under CERCLA.
"NTFC" means NTFC Capital Corporation.
"NTFC Capital Lease" means the Master Lease Agreement, dated December
29, 2000, and the schedules and annexes thereto, as amended, among NTFC,
the Borrower and ITC/\DeltaCom Communications, Inc.
22
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality
of the foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal, interest, charges,
expenses, fees, attorneys' fees and disbursements, indemnities and other
amounts payable by such Loan Party under any Loan Document and (b) the
obligation of such Loan Party to reimburse any amount in respect of any of
the foregoing that any Lender Party, in its sole discretion, may elect to
pay or advance on behalf of such Loan Party.
"Open Year" has the meaning specified in Section 4.01(r)(iii).
"Ordinary Course Obligations" means obligations (exclusive of
obligations for the payment of borrowed money) under letters of credit,
surety bonds, pledges, deposits or other arrangements made to secure the
performance of tenders, bids, leases, statutory or regulatory obligations,
bankers' acceptances, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a similar
nature incurred in the ordinary course of business.
"Original BTI Credit Agreement" has the meaning specified in the
recitals of parties to this Agreement.
"Original ITCD Credit Agreement" has the meaning specified in the
recitals of parties to this Agreement.
"Other Taxes" has the meaning specified in Section 2.11(b).
"Parent" has the meaning specified in the preamble of this Agreement.
"Parent Guaranty" means the guaranty of the Parent set forth in
Article VII.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Encumbrances" has the meaning specified in the Mortgages.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b); (b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations that are not
overdue for a period of more than 30 days; (c) pledges or deposits to
secure obligations under workers' compensation laws or similar legislation
or to secure public or statutory obligations; and (d) Permitted
Encumbrances.
23
"Permitted Refinancing" means a refinancing (satisfying all of the
requirements of Section 5.02(b)(viii)) by the Loan Parties of all (but not
less or more than all) of the principal amount outstanding under the First
Lien Loan Documents and the termination of all of the First Lien Loan
Documents upon the consummation of such refinancing.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Plan of Reorganization" means the Plan of Reorganization of the
Parent under chapter 11 of the Bankruptcy Code in In re ITC/\DeltaCom, Inc.
(Case No. 02-11848 (MFW)).
"Pledged Debt" has the meaning specified in the Security Agreement.
"Pledged Shares" has the meaning specified in the Security Agreement.
"Post-Petition Interest" has the meaning specified in Section 7.06(b).
"Pre-Amendment Information" means all of the written information
provided by or on behalf of the Borrower to the Lenders prior to the
Amendment Effective Date, including all written information regarding the
Merger Transactions.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference
equity, whether outstanding on the date of this Agreement or issued
thereafter, including, without limitation, all series and classes of such
preferred or preference stock.
"PRI" means primary rate interface, a 1.544 mb/s information-carrying
channel that furnishes integrated services digital network services to end
users or wholesale customers.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any network facility or long distance telecommunications
systems or over Persons who own, construct or operate a network facility or
long distance telecommunications systems, in each case by reason of the
nature or type of the business subject to regulation and not pursuant to
laws and regulations of general applicability to Persons conducting
business in such state.
24
"Receivables Financing" means a refinancing (satisfying all of the
requirements of Section 5.02(b)(ix)) by the Loan Parties of all (but not
less or more than all) of the principal amount outstanding under the First
Lien Loan Documents and the termination of all of the First Lien Loan
Documents upon the consummation of such refinancing.
"Redeem" means to purchase, redeem or otherwise retire or acquire for
value, provided, however, that, notwithstanding the foregoing, "Redeem"
shall not include (a) the acquisition and/or retirement by the Parent of
Equity Interests of the Parent which are surrendered to the Parent as
indemnification payments pursuant to the Merger Agreement, (b) the
acquisition and/or retirement by the Parent of Common Stock or other Equity
Interests of the Parent tendered by the holder of an Equity Plan Security
in payment of an exercise or purchase price specified in such Equity Plan
Security or (c) a Benefit Plan Exchange Offer.
"Refinanced First Lien Loan Documents" means the loan documents
relating to any Permitted Refinancing, any Receivables Financing or any
Replacement Financing.
"Register" has the meaning specified in Section 2.15(b).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Release Date" has the meaning specified in Section 5.01(n)(iv).
"Reorganization Common Stock" means the Common Stock of the Parent
issued or issuable under or in connection with the Plan of Reorganization,
including, without limitation, the Conversion Shares and the Warrant
Shares.
"Reorganization Securities" means (a) the Reorganization Common Stock,
(b) the Series A Preferred Stock and (c) the Warrants.
"Replaced Lender Party" has the meaning specified in Section 2.11(g).
"Replacement Effective Date" has the meaning specified in Section
2.11(g).
"Replacement Financing" means a refinancing (satisfying all of the
requirements of Section 5.02(b)(x)) by the Loan Parties of all (but not
less than all) of the principal amount outstanding under the First Lien
Loan Documents and the termination of all of the First Lien Loan Documents
upon the consummation of such refinancing, in connection with which the
Loan Parties may incur additional Debt in excess of the amount necessary to
refinance the entire amount of the First Lien Loan Documents up to the
aggregate amount specified in Section 5.02(b)(x).
"Replacement Lender Party" has the meaning specified in Section
2.11(g).
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority of the aggregate principal amount of the Advances
outstanding at such time;
25
provided, however, that if any Lender shall be a Defaulting Lender at such
time, there shall be excluded from the determination of Required Lenders at
such time (A) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such time and (B)
the aggregate unused Commitments of such Lender at such time, and provided
further, however, that in the event one Lender holds in excess of a
majority of the aggregate principal amount of the Advances outstanding, at
least two Lenders shall be required to be deemed "Required Lenders."
"Responsible Officer" means any officer of any Loan Party or any of
its Subsidiaries.
"Second Capital Lease Amendment" means the Second Amendment to the
Schedules and Leases, dated as of the date hereof, among NTFC, General
Electric Capital Corporation, solely in its capacity as lessor, the
Borrower and ITC/\DeltaCom Communications, Inc.
"Secured Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between the Borrower
and any Hedge Bank.
"Secured Obligations" has the meaning specified in the Security
Agreement.
"Secured Parties" means the Agents, the Lender Parties and the Hedge
Banks.
"Security Agreement" has the meaning specified in Section 3.01(b)(ii).
"Senior Debt" means, for any period, all Debt of the Borrower, BTI and
the Subsidiaries of the Borrower and BTI, secured by a first priority Lien
on real or personal property of the Borrower, BTI or the Subsidiaries of
the Borrower or BTI, but excluding any Debt or other obligations owing to
Southern Telecom, Inc., provided, that Capitalized Lease payments owing to
Southern Telecom, Inc. for any Fiscal Year are less than $1,500,000.
"Senior Debt Ratio" means, in respect of any specified period, the
ratio of (a) Senior Debt for such period to (b) EBITDA for such period.
"Series A Certificate of Designation" means the Parent's Certificate
of Designation of the Powers, Preferences and Relative, Participating,
Optional and other Special Rights of 8% Series A Convertible Redeemable
Preferred Stock and Qualifications, Limitations and Restrictions thereof,
as in effect from time to time.
"Series A PIK Dividends" means the shares of Series A Preferred Stock
paid or payable as dividends on outstanding shares of Series A Preferred
Stock.
"Series A Preferred Stock" means the shares of preferred stock of the
Parent designated as the 8% Series A Convertible Redeemable Preferred Stock
and issued pursuant to the Series A Certificate of Designation, including,
without limitation, Series A PIK Dividends.
26
"Series B Certificate of Designation" means the Parent's Certificate
of Designation of the Powers, Preferences and Relative, Participating,
Optional and other Special Rights of 8% Series B Convertible Redeemable
Preferred Stock and Qualifications, Limitations and Restrictions thereof,
as in effect from time to time.
"Series B Conversion Shares" means the Common Stock or other
securities issued or issuable upon conversion of the Series B Preferred
Stock.
"Series B PIK Dividends" means the shares of Series B Preferred Stock
paid or payable as dividends on outstanding shares of Series B Preferred
Stock.
"Series B Preferred Stock" means the shares of preferred stock of the
Parent designated as the 8% Series B Convertible Redeemable Preferred Stock
and issued pursuant to the Series B Certificate of Designation, including,
without limitation, Series B PIK Dividends.
"Series B Warrant Shares" means the Common Stock or other securities
issued or issuable upon exercise of the Series B Warrants.
"Series B Warrants" means the Common Stock purchase warrants issued by
the Parent on the date of the initial issuance of the Series B Preferred
Stock and any warrants issued in exchange or substitution therefor or upon
exercise thereof in accordance with the warrant agreement pursuant to which
such Common Stock purchase warrants are issued from time to time.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not intend
to, and does not believe that it will, incur debts or liabilities beyond
such Person's ability to pay such debts and liabilities as they mature and
(d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
27
"Subordinated Debt" means Debt that, by the terms of any agreement or
instrument pursuant to which such Debt is Incurred, is expressly made
subordinate in right of payment and priority to the Debt under the Loan
Documents and the Debt under the First Lien Loan Documents.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Subsidiary Guarantors" means the Subsidiaries of the Parent listed on
Schedule II hereto and each other Subsidiary of the Parent that shall be
required to execute and deliver a guaranty pursuant to Section 5.01(j).
"Subsidiary Guaranty" means the guaranty of the Subsidiary Guarantors
set forth in Article VII.
"Successor Agent Agreement" has the meaning specified in the recitals
of parties to this Agreement.
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately after giving effect to the consummation of the
Merger Transactions.
"Tax Agreement" means the Tax Indemnification Agreement, dated as of
August 26, 1997, between ITC Holding Company, Inc. and the Parent.
"Tax Certificate" has the meaning specified in Section 5.03(k).
"Taxes" has the meaning specified in Section 2.11(a).
"Term Advance" means the single advance that was made by each Term
Lender, according to such Lender's Term Commitment, upon the closing of the
Original BTI Credit Agreement.
"Term Borrowing" means a borrowing consisting of simultaneous Term
Advances of the same Type made by the Term Lenders.
"Term Commitment" means, with respect to any Term Lender at any time,
the amount set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 2.15(b) as such Lender's "Term
Commitment."
28
"Term Facility" means, at any time, the aggregate amount of the Term
Lenders' Term Commitments at such time.
"Term Lender" means any Lender that has a Term Commitment.
"Term Note" means a promissory note of the Borrower payable to the
order of any Term Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the indebtedness of the Borrower to such Lender resulting from
the Term Advance made by such Lender, as amended.
"Term Sheet" means the term sheet, dated July 2, 2003, setting forth
the proposed material terms and conditions of this Agreement.
"Termination Date" means the earlier of (a) the date on which the
Administrative Agent, by notice to the Borrower, declares the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable pursuant to Section
6.01 and (b) June 30, 2008.
"Total Leverage Ratio" means, at any date of determination, the ratio
of (x) Consolidated debt to (y) Consolidated EBITDA, in each case, of or by
the Parent and its Subsidiaries during the twelve-month period ending on
the last date of the most recently ended calendar month. For purposes of
computing Total Leverage Ratio only, the term "debt" as used in clause (x)
above means, without duplication, (a) Debt under the Loan Documents, (b)
Debt under the First Lien Loan Documents, (c) Debt referred to in clauses
(c) and (d) of the definition of "Assumed BTI Debt," (d) all Funded Debt,
(e) all Debt for Borrowed Money, (f) all Obligations in respect of Hedge
Agreements, valued as provided in clause (h) of the definition of "Debt,"
and (g) all Obligations as lessee under Capitalized Leases.
"Transactions" means the transactions contemplated by the Loan
Documents.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unencumbered Parcel" means any parcel of real property owned by the
Parent or its Subsidiaries that was not previously pledged as Collateral
under the Original BTI Credit Agreement or the First Amended ITCD Credit
Agreement.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person. For purposes of this definition, Common Stock of the Parent shall
constitute Voting Stock of the Parent and the Series A
29
Preferred Stock and the Series B Preferred Stock shall not constitute
Voting Stock of the Parent.
"Warrant Shares" means the Common Stock or other securities issued or
issuable upon exercise of the Warrants.
"Warrants" means the Common Stock purchase warrants issued by the
Parent on the date of the initial issuance of the Series A Preferred Stock
and any warrants issued in exchange or substitution therefor or upon
exercise thereof in accordance with the warrant agreement pursuant to which
such Common Stock purchase warrants were issued.
"WCAS Securityholders" means, collectively, (a) WCAS Capital Partners
III, L.P., (b) Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P., (c) WCAS
Information Partners, L.P., (d) each of the individual investors and trusts
that executed the Governance Agreement as "WCAS Securityholders," (e) the
Affiliates of any of the Persons referred to in clauses (a), (b), (c) and
(d) above, (f) the related Persons of any of the Persons referred to in
clauses (a), (b), (c) and (d) above and (g) the WCAS Securityholder
Permitted Transferees. For purposes of this definition, "Affiliate" means,
as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control
with, such Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling," "controlled by" and
"under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"WCAS Securityholder Permitted Transferees" means the individuals who
are the heirs, executors, administrators, testamentary trustees, legatees,
beneficiaries, spouses or lineal descendants of any of the WCAS
Securityholders who are natural Persons.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding." References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein, unless otherwise specified herein, shall be construed in
accordance with generally
30
accepted accounting principles in the United States of America as in effect from
time to time and consistent with those applied in the preparation of the
financial statements of the Parent and its Subsidiaries.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. Restructuring. Subject to the terms and conditions
hereof, including without limitation, Section 3.01, in consideration of the
Lenders under the Original BTI Credit Agreement consenting to the consummation
of the Merger Transactions and the continued extension of credit contemplated
thereunder, the parties hereto agree to, and hereby, assume, restructure,
continue and convert $55,715,294 aggregate principal amount of the loans
(together with all interest due thereon) advanced to BTI, Inc. pursuant to the
Original BTI Credit Agreement in the amounts identified in Schedule 1.
Notwithstanding anything to the contrary contained in this Agreement, the
parties understand and agree that, as a result of the assumption, restructuring,
continuation, and conversion contemplated hereby, the Term Facility is fully
funded and no additional funding of the Term Facility shall be made hereunder.
As of the Amendment Effective Date, the principal amount outstanding of the Term
Facility is $55,715,294, excluding accrued and unpaid interest. This amount
represents a valid and binding claim enforceable against the Borrower in
accordance with the terms of the Loan Documents.
SECTION 2.02. Intentionally omitted.
SECTION 2.03. Repayment of Advances. (a) Term Advances. The Borrower
shall repay to the Administrative Agent for the ratable account of the Term
Lenders the aggregate outstanding principal amount of the Term Advances on the
following dates in the amounts indicated (which amount shall be reduced as a
result of the application of prepayments in accordance with Section 2.05):
Date Amount
---- ------
September 30, 2006 $ 3,979,644
December 31, 2006 $ 3,979,644
March 31, 2007 $ 3,979,644
June 30, 2007 $13,979,644
September 30, 2007 $ 646,331
December 31, 2007 $ 646,331
March 31, 2006 $ 646,331
Termination Date $27,857,725
TOTAL $55,715,294
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term
31
Advances outstanding on such date. Each Lender hereby acknowledges that the
receipt of any such payments is subject to the Intercreditor and Subordination
Agreement.
SECTION 2.04. Intentionally omitted.
SECTION 2.05. Prepayments. (a) Optional. Subject to the Intercreditor
and Subordination Agreement, the Borrower may, upon at least one Business Day's
notice in the case of Base Rate Advances and three Business Days' notice in the
case of Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$500,000 or an integral multiple of $500,000 in excess thereof and (y) if any
prepayment of a Eurodollar Rate Advance is made on a date other than the last
day of an Interest Period for such Advance, the Borrower shall also pay any
amounts owing pursuant to Section 9.04(c). Each such prepayment of any Advances
shall be applied ratably to each Lender and to the installments thereof on a pro
rata basis.
(b) Mandatory. Subject to the Intercreditor and Subordination
Agreement:
(i) The Borrower shall, on the 90th day following the end of each
Fiscal Year commencing with the 2003 Fiscal Year, prepay an aggregate
principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the amount of Excess Cash Flow in
excess of $5,000,000 for such Fiscal Year.
(ii) The Borrower shall, within two Business Days after the date
of receipt of the Net Cash Proceeds by the Borrower, BTI or any
Subsidiary of the Borrower or BTI from (A) the sale, lease, transfer
or other disposition of any assets of the Borrower, BTI or any
Subsidiary of the Borrower or BTI (other than leases in the ordinary
course of business or any sale, lease, transfer or other disposition
of assets pursuant to clause (i), (ii), (iv) or (v) of Section
5.02(e)) and (B) any Extraordinary Receipt received by, or paid to, or
for the account of, the Borrower, BTI or any Subsidiary of the
Borrower or BTI and not otherwise included in clause (A) above, prepay
an aggregate principal amount of the Advances comprising part of the
same Borrowings in an amount equal to the amount of such Net Cash
Proceeds.
(iii) The Borrower shall, within two Business Days after the date
of receipt, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings in an amount equal to 33.33% of
the proceeds received on account of any offering of any Equity
Interests of the Parent or any other Loan Party on or after September
30, 2004, except for Equity Interests consisting of any (A)
Reorganization Securities, (B) Merger Agreement Securities, (C) Common
Stock of the Parent, the proceeds of the issuance and sale of which
are applied to refinance the Series A Preferred Stock or Series B
Preferred Stock at not more
32
than 100% of liquidation value plus accrued dividends, or (D) Equity
Plan Securities.
(iv) The Borrower shall, within two Business Days after the date
of receipt (or if later, within two Business Days after the Amendment
Effective Date), prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings in an amount equal to the Net
Advance Payments received by the Borrower under indefeasible right to
use agreements relating to excess raised floor space at the
e/\deltacom facility located in Suwanee, Georgia, which are entered
into by the Borrower after August 22, 2002; provided, that until NTFC
and General Electric Capital Corporation (solely in its capacity as
lessor under the GECC Capital Lease) have received payment of an
aggregate of $6,000,000 under the NTFC Capital Lease and the GECC
Capital Lease since October 29, 2002, as contemplated under Section
1(a)(ii) of the Capital Lease Amendment, the Borrower shall prepay to
the Lenders only 75% of the amount of such Net Advance Payments.
(v) The Borrower shall, within 60 days after the date of the
applicable Financial Covenants Certificate, prepay an aggregate
principal amount of the Advances comprising part of the same
Borrowings in an amount equal to the amount by which the actual
Capital Expenditures set forth therein exceeds the maximum Capital
Expenditures for such period, as set forth in Section 5.02(q).
(vi) The Borrower shall, within 60 days after the date of the
applicable Financial Covenants Certificate, prepay an aggregate
principal amount of the Advances comprising part of the same
Borrowings in an amount necessary to reduce the amount of Advances, as
the case may be, so that the Senior Debt Ratio or the Total Leverage
Ratio shall no longer exceed the maximum Senior Debt Ratio or the
maximum Total Leverage Ratio, as applicable, or so that the Interest
Coverage Ratio shall no longer be less than the minimum Interest
Coverage Ratio, in each case for the applicable period as set forth in
Section 5.02(q).
(vii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the
principal amount prepaid and shall be applied ratably to each Facility
and the First Lien Facilities (prior to such time as all Obligations
outstanding under the First Lien Loan Documents shall have been paid
in full) and to the installments thereof on a pro rata basis.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from time to time plus (B) the Applicable
Base Rate Margin in effect from time to time, payable in arrears
quarterly on the last day of each
33
March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Eurodollar Rate Margin in effect on the first day of
such Interest Period, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the continuance
of a Default, the Borrower shall pay interest on (i) the unpaid principal amount
of each Advance owing to each Lender, payable in arrears on the dates referred
to in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
under the Loan Documents that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid, in
the case of interest, on the Type of Advance on which such interest has accrued
pursuant to clause (a)(i) or (a)(ii) above and, in all other cases, on Base Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly after
receipt of a notice of Conversion pursuant to Section 2.08 or a notice of
selection of an Interest Period pursuant to the terms of the definition of
"Interest Period," the Administrative Agent shall give notice to the Borrower
and each Lender of the applicable Interest Period and the applicable interest
rate determined by the Administrative Agent for purposes of clause (a)(i) or
(a)(ii) above.
SECTION 2.07. Fees. Commencing on the Amendment Effective Date and
until the Termination Date, the Borrower shall pay to the Agent fees in the
amounts set forth in a letter agreement with the Agent.
SECTION 2.08. Conversion of Advances. (a) Optional. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Section 2.09,
Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than $10,000,000 and in integral multiples of $10,000,000 in
excess thereof, no Conversion of any Advances shall result in more than five
separate Borrowings and each Conversion of Advances comprising part of the
34
same Borrowing under any Facility shall be made ratably to each Lender and to
the installments thereof on a pro rata basis. Each such notice of Conversion
shall, within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Advances to be Converted and (iii) if such Conversion is
into Eurodollar Rate Advances, the duration of the initial Interest Period for
such Advances. Each notice of Conversion shall be irrevocable and binding on the
Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $10,000,000, such Advances
shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with
the provisions contained in the definition of "Interest Period" in
Section 1.01, the Administrative Agent will forthwith so notify the
Borrower and the Lenders, whereupon each such Eurodollar Rate Advance
will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance and (y) the obligation of the Lenders to make, or to
Convert Advances into Eurodollar Rate Advances shall be suspended.
SECTION 2.09. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
governmental authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender Party of funding or maintaining
Eurodollar Rate Advances (excluding, for purposes of this Section 2.09, any such
increased costs resulting from (x) Taxes or Other Taxes (as to which Section
2.11 shall govern) and (y) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender Party is organized or
has its Applicable Lending Office or any political subdivision thereof), then
the Borrower shall from time to time, upon demand by such Lender Party (with a
copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender Party additional amounts sufficient to
compensate such Lender Party for such increased cost; provided, however, that a
Lender Party claiming additional amounts under this Section 2.09(a) agrees to
use reasonable efforts (consistent with internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost that may thereafter accrue and would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous to such Lender
Party. A certificate as to the amount of such increased cost, submitted to the
Borrower by such Lender Party, shall be conclusive and binding for all purposes,
absent manifest error.
35
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender Party or
any corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend hereunder and other
commitments of such type, then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party in the light of such circumstances,
to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party's commitment to
lend hereunder. A certificate as to such amounts submitted to the Borrower by
such Lender Party shall be conclusive and binding for all purposes, absent
manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under such Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Appropriate Lenders to Convert Advances into
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lenders have determined that the circumstances
causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to Convert Advances into Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower that such
Lender has determined that the circumstances causing such suspension no longer
exist; provided, however, that, before making any such demand, such Lender
agrees to use reasonable efforts (consistent with its internal policy and legal
and regulatory restrictions) to designate a different Eurodollar Lending Office
if the making of such a designation would allow such Lender or its Eurodollar
Lending Office to fund or maintain Eurodollar Rate Advances and would not, in
the judgment of such Lenders, be otherwise disadvantageous to such Lender.
SECTION 2.10. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.14), not
later than 11:00 A.M. (New York City time)
36
on the day when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds, with payments being received
by the Administrative Agent after such time being deemed to have been received
on the next succeeding Business Day. The Administrative Agent will promptly
thereafter cause like funds to be distributed (i) if such payment by the
Borrower is in respect of principal, interest, commitment fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
Party, to such Lender Parties for the account of their respective Applicable
Lending Offices ratably in accordance with the amounts of such respective
Obligations then payable to such Lender Parties and (ii) if such payment by the
Borrower is in respect of any Obligation then payable hereunder to one Lender
Party, to such Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 9.07(d), from and after
the effective date of such Assignment and Acceptance, the Administrative Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender Party assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party, if and to the
extent payment owed to such Lender Party is not made when due hereunder or, in
the case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender Party any
amount so due.
(c) All computations of interest based on the Base Rate and fees shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate and of fees shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the
37
Administrative Agent, each such Lender Party shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Lender Party together
with interest thereon, for each day from the date such amount is distributed to
such Lender Party until the date such Lender Party repays such amount to the
Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's proportionate share of the principal amount
of all outstanding Advances, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
SECTION 2.11. Taxes. (a) Any and all payments by or for the account of
any Loan Party hereunder, or in respect of the Notes or any other Loan Document,
shall be made, in accordance with Section 2.10, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Lender Party and each Agent, taxes that are imposed on its
overall net income by the United States and taxes that are imposed on its
overall net income (and franchise taxes imposed in lieu thereof) by the state or
foreign jurisdiction under the laws of which such Lender Party or such Agent, as
the case may be, is organized or any political subdivision thereof and, in the
case of each Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If a Loan Party shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note or other Loan Documents to any Lender Party or any Agent, (i) the sum
payable by such Loan Party shall be increased as may be necessary so that after
such Loan Party and the Administrative Agent have made all required deductions
(including deductions applicable to additional sums payable under this Section
2.11) such Lender Party or such Agent, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Loan Party shall make all such deductions and (iii) such Loan Party shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, each Loan Party shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or other Loan Documents
or from the execution, delivery or registration of, performance under, or
otherwise with respect to, this Agreement, the Notes or any other Loan Document
(hereinafter referred to as "Other Taxes").
(c) Each Loan Party shall indemnify each Lender Party and each Agent
for and hold them harmless against the full amount of Taxes and Other Taxes, and
for the full amount of taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.11, imposed on or paid by such Lender Party or such
Agent (as the case may be) and
38
any liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date such Lender Party or such Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
relevant Loan Party shall furnish to the Administrative Agent, at its address
referred to in Section 9.02, the original or a certified copy of a receipt
evidencing such payment. In the case of any payment hereunder or under the Notes
or other Loan Documents by or on behalf of such Loan Party through an account or
branch outside the United States or by or on behalf of such Loan Party by a
payor that is not a United States person, if such Loan Party determines that no
Taxes are payable in respect thereof, such Loan Party shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such address, an
opinion of counsel acceptable to the Administrative Agent stating that such
payment is exempt from Taxes. For purposes of subsections (d) and (e) of this
Section 2.11, the terms "United States" and "United States person" shall have
the meanings specified in Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement in the case of each Initial Lender, as the case may
be, and on the date of the Assignment and Acceptance pursuant to which it
becomes a Lender Party in the case of each other Lender Party, and from time to
time thereafter as requested in writing by the relevant Loan Party (but only so
long thereafter as such Lender Party remains lawfully able to do so), provide
each of the Administrative Agent and each Loan Party with two original Internal
Revenue Service forms W-8ECI or W-8 or W-8BEN (and, if applicable to the
exemption claimed by a Lender Party that delivers a form W-8 or W-8BEN, a
certificate representing that such Lender Party is not a "bank" for purposes of
Section 881(c) of the Internal Revenue Code, is not a 10-percent shareholder,
within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, of the
Loan Party and is not a controlled foreign corporation related to the Loan
Party, within the meaning of Section 864(d)(4) of the Internal Revenue Code), as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Lender Party is exempt from or entitled to a
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes (or, in the case of a Lender Party providing a form W-8
or W-8BEN, certifying that such Lender Party is a foreign corporation,
partnership, estate or trust). If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement indicate a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender Party becomes a
party to this Agreement, the Lender Party assignor was entitled to payments
under subsection (a) of this Section 2.11 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. If any form or document referred to in this subsection
(e) requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue
39
Service form X-0, X-0XXX xx X-0XXX (or the related certificate described above),
that the Lender Party reasonably considers to be confidential, the Lender Party
shall give notice thereof to the Loan Party and shall not be obligated to
include in such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the relevant Loan Party with the appropriate form described in
subsection (e) above (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.11 with respect to Taxes imposed by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the relevant Loan
Party shall take such steps as such Lender Party shall reasonably request to
assist such Lender Party to recover such Taxes.
(g) The Loan Party may replace any Lender Party that has requested
additional amounts under this Section 2.11, by written notice to such Lender
Party and the Administrative Agent and identifying one or more persons each of
which shall be reasonably acceptable to the Administrative Agent (each, a
"Replacement Lender Party", and collectively, the "Replacement Lender Parties")
to replace such Lender Party (the "Replaced Lender Party"); provided, that (i)
the notice from such Loan Party to the Replaced Lender Party and the
Administrative Agent provided for herein above shall specify an effective date
for such replacement (the "Replacement Effective Date"), which shall be at least
five (5) Business Days after such notice is given and (ii) as of the relevant
Replacement Effective Date, each Replacement Lender Party shall enter into an
Assignment and Acceptance with the Replaced Lender Party pursuant to Section
9.07(a) (but shall not be required to pay the processing fee otherwise payable
to the Administrative Agent pursuant to Section 9.07(a)), pursuant to which such
Replacement Lender Parties collectively shall acquire, in such proportion among
them as they may agree with such Loan Party and the Administrative Agent, all
(but not less than all) of the Commitments and outstanding Advances of the
Replaced Lender Party, and, in connection therewith, shall pay to the Replaced
Lender Party, as the purchase price in respect thereof, an amount equal to the
sum as of the Replacement Effective Date, without duplication, of (x) the unpaid
principal amount of, and all accrued but unpaid interest on, all outstanding
Advances of the Replaced Lender Party and (y) the Replaced Lender Party's
ratable share of all accrued but unpaid fees owing to the Replaced Lender Party
hereunder.
SECTION 2.12. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such
40
Obligations owing to such Lender Party at such time to (ii) the aggregate amount
of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered; provided,
further, that, so long as the Obligations under the Loan Documents shall not
have been accelerated, any excess payment received by an Appropriate Lender
shall be shared on a pro rata basis only with other Appropriate Lenders. The
Borrower agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.12 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such interest or participating interest,
as the case may be, as fully as if such Lender Party were the direct creditor of
the Borrower in the amount of such interest or participating interest, as the
case may be.
SECTION 2.13. Intentionally omitted.
SECTION 2.14. Defaulting Lenders. (a) Intentionally omitted.
(b) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrower shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrower shall at such time be insufficient to pay all Defaulted
41
Amounts owing at such time to the Administrative Agent, such other Agents and
such other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted Amounts
then owing to the Administrative Agent hereunder; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.14.
(c) In the event that, at any one time, (i) any Lender Party shall be
a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Amount and (iii) the Borrower, any Agent or any other Lender Party shall be
required to pay or distribute any amount hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower or
such Agent or such other Lender Party shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in a
segregated account with DeutscheBank Trust Company Americas, in the name and
under the control of the Administrative Agent, but subject to the provisions of
this subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be DeutscheBank Trust Company Americas' standard terms applicable to
escrow accounts maintained with it. Any interest credited to such account from
time to time shall be held by the Administrative Agent in escrow under, and
applied by the Administrative Agent from time to time in accordance with the
provisions of, this subsection (c). The Administrative Agent shall, to the
fullest extent permitted by applicable law, apply all funds so held in escrow
from time to time to the extent necessary to make any Advances required to be
made by such Defaulting Lender and to pay any amount payable by such Defaulting
Lender hereunder and under the other Loan Documents to the Administrative Agent
or any other Lender Party, as and when such Advances or amounts are required to
be made or paid and, if the amount so held in escrow shall at any time be
insufficient to make and pay all such Advances and amounts required to be made
or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent for any amounts then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lender Parties for any amount then due
and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
42
(iii) third, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.14 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender and that any Agent or any Lender Party may
have against such Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.15. Evidence of Debt; Register. (a) Each Lender Party shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Advance
owing to such Lender Party from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender Party to the Borrower (with a
copy of such notice to the Administrative Agent) to the effect that a promissory
note or other evidence of indebtedness is required or appropriate in order for
such Lender Party to evidence (whether for purposes of pledge, enforcement or
otherwise) the Advances owing to, or to be made by, such Lender Party, the
Borrower shall promptly execute and deliver to such Lender Party, with a copy to
the Administrative Agent, a Term Note, in substantially the form of Exhibit A-1,
payable to the order of such Lender Party in a principal amount equal to the
Term Commitment of such Lender Party. The Lenders hereby agree that any
promissory notes evidencing the Advances issued by the Borrower to any Lender
prior to the date hereof shall be deemed null and void and of no further force
or effect for any and all purposes, and each Lender that is a holder of any such
note agrees to surrender such note to the Borrower. All references to Notes in
the Loan Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Administrative Agent shall maintain at its address referred to
in Section 9.02 a register for the recordation of the names and addresses of the
Lender Parties and the Commitment under each Facility of each Lender Party from
time to time (the "Register"). The Register maintained by the Administrative
Agent pursuant to this Section shall also include a control account, and a
subsidiary account for each Lender Party, in which accounts (taken together)
shall be recorded (i) the date and amount of each Borrowing made hereunder, the
Type of Advances comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
Party hereunder, and (iv) the amount of any sum received by the Administrative
Agent from the Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in the
Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to
43
subsection (a) above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from the Borrower to,
in the case of the Register, each Lender Party and, in the case of such account
or accounts, such Lender Party, under this Agreement, absent manifest error;
provided, however, that the failure of the Administrative Agent or such Lender
Party to make an entry, or any finding that an entry is incorrect, in the
Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
(d) The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower, the Agents and the Lender
Parties may treat each Person whose name is recorded in the Register as a Lender
Party hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Agent or any Lender Party at any
reasonable time and from time to time upon reasonable prior notice.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Amendment Effective Date.
The occurrence of the Amendment Effective Date is subject to the satisfaction of
the following conditions precedent:
(a) The Amendment Effective Date shall occur on or before November 30,
2003.
(b) The Administrative Agent shall have received the following, each
dated the Amendment Effective Date (unless otherwise specified), in form and
substance satisfactory to the Administrative Agent (unless otherwise specified)
and (except for the Notes) in sufficient copies for each Lender Party:
(i) The Notes payable to the order of the Lenders, to the extent
requested by any Lender pursuant to Section 2.15(a).
(ii) A security agreement in substantially the form of Exhibit D
hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each
case as amended, the "Security Agreement"), duly executed by each Loan
Party, together with:
(A) written confirmation of receipt by the First Lien
Collateral Agent of certificates representing the Pledged Shares
referred to under the First Lien Security Agreement and the
Security Agreement accompanied by undated stock powers executed
in blank and instruments evidencing the Pledged Debt indorsed in
blank, to be held by the First Lien Collateral Agent pursuant to
the terms of the First Lien Security Agreement and otherwise in
accordance with the Intercreditor and Subordination Agreement.
44
(B) acknowledgment copies or stamped receipt copies of
proper financing statements (or proper amendments to any
financing statements filed pursuant to the First Lien Credit
Agreement and the Original BTI Credit Agreement), duly filed on
or before the Amendment Effective Date under the Uniform
Commercial Code of all jurisdictions that the Administrative
Agent may reasonably deem necessary or desirable in order to
perfect and protect the priority liens and security interests
created under the Security Agreement, covering the Collateral
described in the Security Agreement, subject only to the prior
Lien of the First Lien Collateral Agent and Permitted Liens and
otherwise in accordance with the Intercreditor and Subordination
Agreement,
(C) completed requests for information, dated on or before
the Amendment Effective Date, listing the financing statements
referred to in clause (B) above and all other effective financing
statements filed in the jurisdictions referred to in clause (B)
above that name any Loan Party as debtor, together with copies of
such other financing statements,
(D) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreement that the
Administrative Agent may reasonably deem necessary or desirable
in order to perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the
Security Agreement,
(F) written confirmation of receipt by the First Lien
Collateral Agent of copies of the Assigned Agreements referred to
in the Security Agreement, to be held by the First Lien
Collateral Agent pursuant to the terms of the First Lien Security
Agreement and otherwise in accordance with the Intercreditor and
Subordination Agreement,
(G) Intentionally omitted, and
(H) evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable in order to
perfect and protect the priority liens and security interests
created under the Security Agreement has been taken (including,
without limitation, receipt of duly executed payoff letters,
UCC-3 termination statements, landlords' and bailees' waiver and
consent agreements and account control and cash management
agreements in form and substance satisfactory to the
Administrative Agent) subject only to the prior Lien of the First
Lien Collateral Agent and Permitted Liens and otherwise in
accordance with the Intercreditor and Subordination Agreement.
(iii) The Intercreditor and Subordination Agreement in
substantially the form of Exhibit E hereto, duly executed by each of
the parties thereto.
45
(iv) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the Transactions and each Loan
Document to which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental and other
third party approvals and consents, if any, with respect to the
Transactions and each Loan Document to which it is or is to be a
party.
(v) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation of each Loan Party, dated reasonably
near the date of the Amendment Effective Date, certifying (A) as to a
true and correct copy of the charter of such Loan Party and each
amendment thereto on file in such Secretary's office and (B) that (1)
such amendments are the only amendments to such Loan Party's charter
on file in such Secretary's office, (2) to the extent that the
Secretary of State of the applicable jurisdiction of incorporation
provides such a certification, such Loan Party has paid all franchise
taxes to the date of such certificate and (C) such Loan Party is duly
incorporated and in good standing or presently subsisting under the
laws of the State of the jurisdiction of its incorporation.
(vi) A copy of a certificate of the Secretary of State in each
jurisdiction in which each Loan Party is qualified to do business,
dated reasonably near the date of the Amendment Effective Date,
stating that such Loan Party is duly qualified and in good standing as
a foreign corporation in such State and has filed all annual reports
required to be filed to the date of such certificate.
(vii) A certified copy of the articles of merger as filed with
the Secretary of State of the State of North Carolina certifying that
the Merger has been consummated.
(viii) A certificate of each Loan Party, signed on behalf of such
Loan Party by its President or a Vice President and its Secretary or
any Assistant Secretary, dated the Amendment Effective Date (the
statements made in which certificate shall be true on and as of the
Amendment Effective Date), certifying as to (A) the absence of any
amendments to the charter of such Loan Party since the date of the
Secretary of State's certificate referred to in Section 3.01(b)(iv),
except as required to consummate the Merger, (B) a true and correct
copy of the bylaws of such Loan Party as in effect on the date on
which the resolutions referred to in Section 3.01(b)(iii) were adopted
and on the Amendment Effective Date, (C) the due incorporation and
good standing or valid existence of such Loan Party as a corporation
organized under the laws of the jurisdiction of its incorporation, and
the absence of any proceeding for the dissolution or liquidation of
such Loan Party, (D) the truth of the representations and warranties
contained in the Loan Documents as though made on and as of the
Amendment Effective Date and (E) the absence of any event occurring
and continuing, or resulting from entering into this Agreement, that
constitutes a Default.
46
(ix) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Loan Document to
which it is or is to be a party and the other documents to be
delivered hereunder and thereunder.
(x) Certificates, in substantially the form of Exhibit F hereto,
attesting to the Solvency of each Loan Party after giving effect to
the Transactions and the Merger Transactions to be effected on the
Merger Closing Date, from the Chief Financial Officer of such Loan
Party.
(xi) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
reasonably requested, including, without limitation, information as to
possible contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements as of and for Fiscal
Year 2002, and interim financial statements dated the end of the most
recent fiscal quarter for which financial statements are available
(or, in the event the Lender Parties' due diligence review reveals
material changes since such financial statements, as of a later date
within 45 days before the Amendment Effective Date), pro forma
financial statements of the Borrower and forecasts prepared by
management of the Borrower, in form and substance reasonably
satisfactory to the Lender Parties, with respect to Fiscal Year 2003.
(xii) Evidence of insurance naming the Collateral Agent as
additional insured and loss payee with such responsible and reputable
insurance companies or associations, and in such amounts and covering
such risks, as is reasonably satisfactory to the Lender Parties.
(xiii) Favorable opinions of counsel for the Loan Parties, in
substantially the form of Exhibit G hereto and as to such other
matters as any Lender Party through the Administrative Agent may
reasonably request.
(xiv) A copy of all the documents relating to the Merger
Transactions, each duly executed by the parties thereto.
(c) The Lender Parties shall be satisfied with the corporate and legal
structure and capitalization of each Loan Party and each of its
Subsidiaries whose Equity Interests are being pledged pursuant to the Loan
Documents, including the terms and conditions of the charter, bylaws and
each class of Equity Interest in each Loan Party and each such Subsidiary
and of each agreement or instrument relating to such structure or
capitalization.
(d) The Lender Parties shall be satisfied that all Surviving Debt
shall be on terms and conditions reasonably satisfactory to the Lender
Parties.
47
(e) Before giving effect to the Transactions, there shall have
occurred no Material Adverse Change since December 31, 2002.
(f) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could reasonably be expected to have a Material Adverse Effect other than
the matters described on Schedule 4.01(f) hereto (the "Disclosed
Litigation") or (ii) could reasonably be expected to have a Material
Adverse Effect on the consummation of the Transactions or the Merger
Transactions.
(g) All governmental and third party consents and approvals necessary
in connection with the Transactions shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the
Lender Parties) and shall remain in effect (other than any consents and
approvals the absence of which, either individually or in the aggregate,
would not have a Material Adverse Effect); all applicable waiting periods
in connection with the Transactions shall have expired without any action
being taken by any competent authority (other than any action which either
individually or in the aggregate with all such actions would not reasonably
be expected to have a Material Adverse Effect), and no law or regulation
shall be applicable in the reasonable judgment of the Lender Parties, in
each case that restrains, prevents or imposes materially adverse conditions
upon the Transactions or the rights of the Loan Parties or their
Subsidiaries freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of them.
(h) All Pre-Amendment Information shall be true, correct and complete
in all material aspects as of the dates specified therein, and no
additional information shall have come to the attention of the Loan Parties
that could reasonably be expected to have a Material Adverse Effect.
(i) The Lender Parties shall have completed a due diligence
investigation of the Loan Parties in scope, and with results, satisfactory
to the Lender Parties, and nothing shall have come to the attention of the
Lender Parties during the course of such due diligence investigation to
lead them to believe that the Transactions will have a Material Adverse
Effect; without limiting the generality of the foregoing, the Lender
Parties shall have been given such access to the management, records, books
of account, contracts and properties of the Loan Parties as they shall have
requested.
(j) The Borrower shall have paid (i) all accrued and unpaid interest,
expenses and fees outstanding with respect to the First Amended ITCD Credit
Agreement, (ii) all accrued and unpaid interest, expenses and fees
outstanding with respect to the Original BTI Credit Agreement and (iii) all
accrued fees of the Administrative Agent, the Lender Parties and the Agents
(including the accrued reasonable fees and expenses of legal counsel and
financial advisors to the Administrative Agent).
(k) The Required Lenders shall be reasonably satisfied that (i) the
Parent and its Subsidiaries will be able to meet their respective
obligations under all employee and retiree welfare plans, (ii) the employee
benefit plans of the Parent and its ERISA
48
Affiliates are, in all material respects, funded in accordance with the
minimum statutory requirements, (iii) no "reportable event" (as defined in
ERISA, but excluding events for which reporting has been waived) has
occurred as to any such employee benefit plan and (iv) no termination of,
or withdrawal from, any such employee benefit plan has occurred or is
contemplated that could reasonably be expected to result in a material
liability.
(l) The Merger Transactions to be consummated on the Merger Closing
Date shall have been consummated in accordance with the Merger Agreement.
(m) The Second Capital Lease Amendment shall have become effective.
(n) The parties shall have executed and delivered the First Lien Loan
Documents.
(o) The Agent shall have received a fully executed fee letter from the
Borrower.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows as of the date hereof and the
Amendment Effective Date:
(a) Upon consummation of, and after giving effect to, the Merger
Transactions to be consummated on the Merger Closing Date, each Loan Party
and each of its Subsidiaries (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be
licensed except where the failure to so qualify or be licensed would not be
reasonably likely to have a Material Adverse Effect and (iii) has all
requisite corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease and
operate its properties and to carry on its business as now conducted and as
currently proposed to be conducted, except where the failure to have such
power or authority would not be reasonably likely to have a Material
Adverse Effect. All of the outstanding Equity Interests in the Borrower
have been validly issued, are fully paid and non-assessable and are owned
by the Parent free and clear of all Liens, except those created under the
Loan Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party as of consummation of, and
after giving effect to, the Merger Transactions to be consummated on the
Merger Closing Date, showing as of the date hereof (as to each such
Subsidiary) the jurisdiction of its incorporation, the number of shares of
each class of its Equity Interests authorized, and the number outstanding,
on the date hereof and the percentage of each such class of its Equity
Interests owned (directly or indirectly) by such Loan Party and the number
of shares covered by all
49
outstanding options, warrants, rights of conversion or purchase and similar
rights at the date hereof. All of the outstanding Equity Interests in each
Loan Party's Subsidiaries have been validly issued, are fully paid and
non-assessable and are owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under the
Loan Documents.
(c) Upon consummation of, and after giving effect to, the Merger
Transactions to be consummated on the Merger Closing Date, the execution,
delivery and performance by each Loan Party of each Loan Document to which
it is or is to be a party, and the consummation of the Transactions, are
within such Loan Party's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene such Loan Party's
charter or bylaws, (ii) violate any law, rule, regulation (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System), order, writ, judgment, injunction, decree, determination
or award, (iii) conflict with or result in the breach of, or constitute a
default under, any loan agreement, indenture, mortgage, deed of trust, or
material contract, lease or other instrument binding on or affecting any
Loan Party, any of its Subsidiaries or any of their properties or (iv)
except for the Liens created under the Loan Documents and the First Lien
Loan Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any of
its Subsidiaries. Upon consummation of, and after giving effect to, the
Merger Transactions to be consummated on the Merger Closing Date, no Loan
Party or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or breach
of which could be reasonably likely to have a Material Adverse Effect.
(d) Upon consummation of, and after giving effect to, the Merger
Transactions to be consummated on the Merger Closing Date, no authorization
or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body (including, without limitation,
the FCC or any applicable PUC) or any other third party is required for (i)
the due execution, delivery, recordation, filing or performance by any Loan
Party of any Loan Document to which it is or is to be a party, or for the
consummation of the Transactions, (ii) the grant or affirmation by any Loan
Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) the perfection or maintenance of the Liens created under the
Collateral Documents (including the first priority nature thereof), or (iv)
the exercise by any Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals, actions,
notices and filings listed on Schedule 4.01(d) hereto, all of which have
been duly obtained, taken, given or made and are in full force and effect
except (A) as set forth in the Loan Documents or (B) for such
authorizations, approvals, actions, notices and filings which would not
have a Material Adverse Effect if not so made or obtained. All applicable
waiting periods in connection with the Transactions have expired without
any action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the Transactions
or the rights of the Loan Parties or
50
their Subsidiaries freely to transfer or otherwise dispose of, or to create
any Lien on, any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party thereto. This Agreement is, and each other Loan Document when
delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in accordance
with its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or, to the Borrower's knowledge, threatened
before any court, governmental agency or arbitrator that (i) would, alone
or when considered in conjunction with any other actions, suits,
investigation, litigation or proceeding affecting any Loan Party, be
reasonably likely to have a Material Adverse Effect other than the
Disclosed Litigation or (ii) purports to affect the legality, validity or
enforceability of any Loan Document or the consummation of Transactions,
and there has been no material adverse change in the status, or financial
effect on any Loan Party or any of its Subsidiaries, of or as a result of
the Disclosed Litigation from that described on Schedule 4.01(f) hereto.
(g) The (i) Consolidated balance sheet of the Parent and its
Subsidiaries and the Consolidated balance sheet of BTI and its Subsidiaries
as at December 31, 2002, (ii) the related Consolidated statement of income
and Consolidated statement of cash flows of the Parent and its Subsidiaries
for the Fiscal Year then ended and the related Consolidated statement of
income and Consolidated statement of cash flows of BTI and its Subsidiaries
for the fiscal year ended December 31, 2002, (iii) the Consolidated balance
sheet of the Parent and its Subsidiaries and the Consolidated balance sheet
of BTI and its Subsidiaries as at June 30, 2003, and (iv) the related
Consolidated statement of income and Consolidated statement of cash flows
of the Parent and its Subsidiaries and the related Consolidated statement
of income and Consolidated statement of cash flows of BTI and its
Subsidiaries for the six months then ended, duly certified by the Chief
Financial Officer of the Parent or the Chief Financial Officer of BTI, as
the case may be, copies of which have been furnished to each Lender Party,
fairly present, subject, in the case of such balance sheet as at June 30,
2003, and such statements of income and cash flows for the six months then
ended, to year-end audit adjustments, the Consolidated financial condition
of the Parent and its Subsidiaries or BTI and its Subsidiaries, as the case
may be, as at such date and the Consolidated results of operations of the
Parent and its Subsidiaries or BTI and its Subsidiaries, as the case may
be, for the period ended on such date, all in accordance with GAAP applied
on a consistent basis, and since December 31, 2002 there has been no
Material Adverse Change.
(h) Intentionally omitted.
(i) The Consolidated balance sheets, income statements and cash flows
statements of (i) the Borrower and its Subsidiaries and (ii) BTI and its
Subsidiaries delivered to the Lender Parties pursuant to Section 5.03(e)
were or will be, and the unaudited pro forma financial information about
the Loan Parties after giving effect to
51
the Merger Transactions as furnished by the Parent on September 19, 2003 to
the Securities and Exchange Commission on Form 8-K was, prepared in good
faith on the basis of the assumptions stated therein, which assumptions
were or will be fair in light of the conditions existing at the time of
delivery of such information, and represented or will represent, at the
time of delivery, the Borrower's best estimate of the future financial
performance of the Loan Parties.
(j) No information, exhibit or report furnished by or on behalf of any
Loan Party to any Agent or any Lender Party in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted to
state a material fact necessary to make the statements made therein not
misleading.
(k) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin
Stock.
(l) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other Transactions,
will violate any provision of such Act or any rule, regulation or order of
the Securities and Exchange Commission thereunder.
(m) The consummation of the Merger Transactions will not cause a
Material Adverse Effect under any indenture, loan or credit agreement or
any lease or other agreement or instrument or any charter or corporate
restriction to which any Loan Party or any of its Subsidiaries is a party
from and after the Amendment Effective Date.
(n) The Collateral Documents create a valid security interest in the
Collateral, securing the payment of the Secured Obligations, and at such
time as all filings delivered to the Collateral Agent on the Amendment
Effective Date have been duly filed in accordance with the provisions of
the Security Agreement, such security interest will be perfected. The Loan
Parties are the legal and beneficial owners of the Collateral free and
clear of any Lien, except for the Liens and security interests created or
permitted under the Loan Documents.
(o) Upon consummation of, and after giving effect to, the Merger
Transactions to be consummated on the Merger Closing Date, each Loan Party
is and will be, individually and together with its Subsidiaries, Solvent.
(p) (i) Set forth on Schedule 4.01(p) hereto is a complete and
accurate list of all Plans, Multiemployer Plans and Welfare Plans.
52
(ii) No ERISA Event (i) has occurred and is outstanding or (ii)
to the Borrower's knowledge, is reasonably expected to occur, in each
case with respect to any Plan.
(iii) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lender Parties, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B
there has been no material adverse change in such funding status.
(iv) Neither any Loan Party nor any ERISA Affiliate has incurred
or, to the Borrower's knowledge, is reasonably expected to incur any
Withdrawal Liability exceeding $1,000,000 to any Multiemployer Plan.
(v) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan, to
the Borrower's knowledge, is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(q) (i) The operations and properties of each Loan Party and each of
its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could (A)
form the basis of an Environmental Action against any Loan Party or any of
its Subsidiaries or any of their properties that could have a Material
Adverse Effect or (B) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(ii) None of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or, to the best of its knowledge, is
adjacent to any such property; there are no and or, to the best of its
knowledge, never have been any underground or aboveground storage
tanks or any surface impoundments, septic tanks, pits, sumps or
lagoons in which Hazardous Materials are being or have been treated,
stored or disposed on any property currently owned or, to the best of
its knowledge, operated by any Loan Party or any of its Subsidiaries
or, to the best of its knowledge, on any property formerly owned or
operated by any Loan Party or any of its Subsidiaries; there is no
asbestos or asbestos-containing material on any property currently
owned or, to the best of its knowledge, operated by any Loan Party or
any of its Subsidiaries; and Hazardous Materials have not been
released, discharged or disposed of on any property currently or
formerly owned or operated by any Loan Party or any of its
Subsidiaries except as specifically permitted under Environmental
Laws.
53
(iii) Neither any Loan Party nor any of its Subsidiaries is
undertaking, or has completed, either individually or together with
other potentially responsible parties, any investigation or assessment
or remedial or response action relating to any actual or threatened
release, discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the order of
any governmental or regulatory authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries have been disposed of in a manner not reasonably
expected to result in material liability to any Loan Party or any of
its Subsidiaries.
(r) (i) Except as set forth in Schedule 4.01(r) hereto, neither any
Loan Party nor any of its Subsidiaries is party to any tax sharing
agreement.
(ii) (x) all tax returns and all material statements, reports and
forms (including estimated tax or information returns) (collectively,
the "Tax Returns") required to be filed with any taxing authority by,
or with respect to, each Loan Party and its Subsidiaries have been
timely filed in accordance with all applicable laws and, as of time of
filing, each Tax Return was accurate and complete and correctly
reflected the facts regarding income, business, assets, operations and
the status of each Loan Party and its Subsidiaries; (y) each Loan
Party and its Subsidiaries has timely paid or made adequate provision
for payment of all taxes that are shown as due and payable on Tax
Returns that have been so filed or that are otherwise required to be
paid, including without limitation, assessments, interest and
penalties (other than taxes which are being contested in good faith
and for which adequate reserves are reflected on the financial
statements delivered hereunder); and (z) each Loan Party and its
Subsidiaries have made adequate provision for all taxes payable by
such Loan Party and its Subsidiaries for which no Tax Return has yet
been filed or which are otherwise due.
(iii) Set forth on Part I of Schedule 4.01(r) hereto is a
complete and accurate list, as of the date hereof, of each taxable
year of each Loan Party and each of its Subsidiaries and Affiliates
for which Federal income tax returns have been filed and for which the
expiration of the applicable statute of limitations for assessment or
collection has not occurred by reason of extension or otherwise (an
"Open Year").
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiaries and Affiliates proposed by the Internal
Revenue Service with respect to Open Years does not exceed $35,000.
Set forth on Part II of Schedule 4.01(r) hereto is a complete and
accurate description, as of the date hereof, of each such item that
separately, for all such Open Years, together with applicable interest
and penalties, exceeds $100,000. To the Borrower's knowledge, no
issues have been raised by the Internal Revenue Service in respect of
Open Years that, in the aggregate, could be reasonably likely to have
a Material Adverse Effect.
54
(v) Except as set forth in Schedule 4.01(r) hereto, the aggregate
unpaid amount, as of the date hereof, of adjustments to the state,
local and foreign tax liability of each Loan Party and its
Subsidiaries and Affiliates proposed by all state, local and foreign
taxing authorities (other than amounts arising from adjustments to
Federal income tax returns) does not exceed $35,000. No issues have
been raised by such taxing authorities that, in the aggregate, could
be reasonably likely to have a Material Adverse Effect.
(s) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries have been affected by any fire, explosion, accident,
strike, lockout or other labor dispute, drought, storm, hail, earthquake,
embargo, act of God or of the public enemy or other casualty (whether or
not covered by insurance) that could be reasonably likely to have a
Material Adverse Effect.
(t) Intentionally omitted.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of its
Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or
assets of such Loan Party or such Subsidiary subject thereto.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all real property owned by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, record owner and gross book and fair
value thereof. Each Loan Party or such Subsidiary has good, marketable and
insurable fee simple title to such real property, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list of all leases of real property under which any Loan Party or any of
its Subsidiaries is the lessee, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries
on the date hereof, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
(z) Set forth on Schedule 4.01(z) hereto is a complete and accurate
list of all patents, trademarks, trade names, service marks and copyrights,
and all applications therefor and licenses thereof, of each Loan Party or
any of its Subsidiaries, showing as of
55
the date hereof the jurisdiction in which registered, the registration
number, the date of registration and the expiration date.
(aa) Set forth on Schedule 4.01(aa) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries
involving aggregate consideration payable to or by such Loan Party or its
Subsidiaries of $20,000,000 or more in any year. Each such Material
Contract, together with each other Material Contract which shall be set
forth on Schedule 4.01(aa) hereto pursuant to Section 5.01(n)(iii), shows
or shall show as of the date hereof the parties, subject matter and term
thereof. Each such Material Contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise
modified, is in full force and effect and is binding upon and enforceable
against all parties thereto in accordance with its terms, and except as set
forth on Schedule 4.01(aa) hereto, and subject to the consummation of, and
after giving effect to, the Merger Transactions to be consummated on the
Merger Closing Date, there exists no default under any Material Contract by
any party thereto.
ARTICLE V
COVENANTS OF THE PARENT
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid
or any Lender Party shall have any Commitment hereunder, the Parent shall:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA, the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970, the rules
and regulations of the FCC and each applicable PUC.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or discharge
any such tax, assessment, charge or claim that is being contested in good
faith and by proper proceedings and as to which appropriate reserves are
being maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct,
56
and cause each of its Subsidiaries to conduct, any investigation, study,
sampling and testing, and undertake any cleanup, removal, remedial or other
action necessary to remove and clean up all Hazardous Materials from any of
its properties, to the extent required by and in accordance with all
Environmental Laws; provided, however, that neither the Borrower nor any of
its Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which the Parent or such
Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, legal name, rights (charter and statutory), permits,
licenses, approvals, privileges and franchises; provided, however, that the
Parent and its Subsidiaries may consummate the Merger, the merger of FS
Multimedia, Inc. with and into another Subsidiary of the Parent and any
other merger or consolidation permitted under Section 5.02(d) and provided,
further, that neither the Parent nor any of its Subsidiaries shall be
required to preserve any right, permit, license, approval, privilege or
franchise if the Board of Directors of the Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Parent or such Subsidiary, as the case may
be, and that the loss thereof is not disadvantageous in any material
respect to the Parent, such Subsidiary or the Lender Parties.
(f) Visitation Rights. At any reasonable time upon prior reasonable
notice and from time to time, permit any of the Agents or any of the Lender
Parties, or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and visit
the properties of, the Parent and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Parent and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
the Parent and each such Subsidiary in accordance with generally accepted
accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
57
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Parent or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate. This Section 5.01(i) shall not limit the consummation of the
Merger Transactions.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x) the
request of the Collateral Agent following the occurrence and during the
continuation of a Default, (y) the formation or acquisition of any new
direct or indirect Subsidiaries by any Loan Party or (z) the acquisition of
any property acquired for a purchase price in excess of $10,000,000 in any
Fiscal Year and $50,000,000 in the aggregate over the term of this
Agreement by any Loan Party, and such property, in the judgment of the
Collateral Agent, shall not already be subject to a perfected first
priority security interest in favor of the Collateral Agent for the benefit
of the Secured Parties, then the Borrower shall, in each case at the
Borrower's expense:
(i) in connection with the formation or acquisition of a
Subsidiary, within 30 days after such formation or acquisition, cause
each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly execute and
deliver to the Collateral Agent a guaranty or guaranty supplement, in
form and substance satisfactory to the Collateral Agent, guaranteeing
the other Loan Parties' obligations under the Loan Documents,
(ii) within 30 days after such request, formation or acquisition,
furnish to the Collateral Agent a description of the real and personal
properties of the Loan Parties and their respective Subsidiaries in
detail satisfactory to the Collateral Agent,
(iii) within 60 days after such request, formation or
acquisition, duly execute and deliver, and cause each such Subsidiary
and each direct and indirect parent of such Subsidiary (if it has not
already done so) to duly execute and deliver, to the Collateral Agent
mortgages, pledges, assignments, security agreement supplements and
other security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all the
Obligations of the applicable Loan Party, such Subsidiary or such
parent, as the case may be, under the Loan Documents and constituting
Liens on all such properties,
(iv) within 60 days after such request, formation or acquisition,
take, and cause such Subsidiary or such parent to take, whatever
action (including, without limitation, the recording of mortgages, the
filing of Uniform Commercial Code financing statements, the giving of
notices and the endorsement of notices on title documents) may be
necessary or advisable in the opinion of the Collateral Agent to vest
in the Collateral Agent (or in any representative of the Collateral
Agent designated by it) valid and subsisting Liens on the properties
purported to be subject to the mortgages, pledges, assignments,
security agreement
58
supplements and security agreements delivered pursuant to this Section
5.01(j), enforceable against all third parties in accordance with
their terms,
(v) within 60 days after such request, formation or acquisition,
deliver to the Collateral Agent, upon the request of the Collateral
Agent in its sole discretion, a signed copy of a favorable opinion,
addressed to the Collateral Agent and the other Secured Parties, of
counsel for the Loan Parties reasonably acceptable to the Collateral
Agent as to the matters contained in clauses (i), (iii) and (iv)
above, as to such guaranties, guaranty supplements, mortgages,
pledges, assignments, security agreement supplements and security
agreements being legal, valid and binding obligations of each Loan
Party thereto enforceable in accordance with their terms, as to the
matters contained in clause (iv) above, as to such recordings,
filings, notices, endorsements and other actions being sufficient to
create valid perfected Liens on such properties, and as to such other
matters as the Collateral Agent may reasonably request,
(vi) within 60 days after such request, formation or acquisition,
or as promptly as practicable thereafter, deliver, upon the request of
the Collateral Agent in its sole discretion, to the Collateral Agent
with respect to each parcel of real property owned by the entity that
is the subject of such request, formation or acquisition such title
reports, surveys and engineering, soils and other reports, and
environmental assessment reports, as may be prepared in the ordinary
course of business by such entity, provided, however, that to the
extent that any Loan Party or any of its Subsidiaries shall have
otherwise received any of the foregoing items with respect to such
real property, such items shall, promptly after the receipt thereof,
be delivered to the Collateral Agent,
(vii) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited any and all cash dividends
paid or payable to it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Collateral Account, and with
respect to all other dividends paid or payable to it or any of its
Subsidiaries from time to time, promptly execute and deliver, or cause
such Subsidiary to promptly execute and deliver, as the case may be,
any and all further instruments and take or cause such Subsidiary to
take, as the case may be, all such other action as the Collateral
Agent may deem necessary or desirable in order to obtain and maintain
from and after the time such dividend is paid or payable a perfected,
first priority lien on and security interest in such dividends, and
(viii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Collateral Agent may deem reasonably
necessary or desirable in obtaining the full benefits of, or in
perfecting and preserving the Liens of, such guaranties, mortgages,
pledges, assignments, security agreement supplements and security
agreements.
59
(k) Further Assurances. (i) Promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, correct, and cause each of
its Subsidiaries promptly to correct, any material defect or error that may
be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender Party
through the Administrative Agent, do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all
such further acts, deeds, conveyances, pledge agreements, mortgages,
deeds of trust, trust deeds, assignments, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as any
Agent, or any Lender Party through the Administrative Agent, may
reasonably require from time to time in order to (A) carry out more
effectively the purposes of the Loan Documents, (B) to the fullest
extent permitted by applicable law, subject any Loan Party's or any of
its Subsidiaries' properties, assets, rights or interests to the Liens
now or hereafter intended to be covered by any of the Collateral
Documents, (C) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens
intended to be created thereunder and (D) assure, convey, grant,
assign, transfer, preserve, protect and confirm more effectively unto
the Secured Parties the rights granted or now or hereafter intended to
be granted to the Secured Parties under any Loan Document or under any
other instrument executed in connection with any Loan Document to
which any Loan Party or any of its Subsidiaries is or is to be a
party, and cause each of its Subsidiaries to do so. Notwithstanding
the foregoing, no Loan Party shall be required, solely pursuant to the
provisions of this Section 5.01(k), to encumber any assets which were
not otherwise required to be encumbered on the Amendment Effective
Date or pursuant to Section 5.01(j).
(l) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property
to which the Borrower or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of any default by any party with respect to
such leases and cooperate with the Administrative Agent in all respects to
cure any such default, and cause each of its Subsidiaries to do so, except
in each of the foregoing cases where the failure to do so would not have a
Material Adverse Effect.
(m) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed
by it, including, without limitation, Section 8.21 of the Merger Agreement,
maintain each such Material Contract in full force and effect until the
cancellation or termination thereof in accordance with its terms, enforce
each such Material Contract in accordance with its terms, take all such
action to such end as may be from time to time reasonably requested by the
Administrative Agent and, upon request of the Administrative Agent, make to
each other party to each such Material Contract such demands and requests
for information and reports or for action as any Loan Party or any of its
Subsidiaries is
60
entitled to make under such Material Contract, and cause each of its
Subsidiaries to do so, except in each of the foregoing cases where the
failure to do so would not have a Material Adverse Effect.
(n) Conditions Subsequent. (i) With respect to (A) any newly-acquired
Unencumbered Parcel with a gross book value in excess of $1,000,000, or (B)
any Unencumbered Parcel owned by any Loan Party as of the Amendment
Effective Date in which any such Loan Party has invested such that the
gross book value of the land and any buildings thereon after the investment
is completed is greater than $1,000,000, the Loan Parties shall deliver to
the Administrative Agent, within 90 days after the closing of any such
acquisition in clause (A) above or of any such investment in clause (B)
above with respect to such property, the following, each dated such day
(unless otherwise specified) in form and substance satisfactory to the
Lenders: deeds of trust, trust deeds, mortgages, leasehold mortgages and
leasehold deeds of trust in form reasonably satisfactory to the
Administrative Agent (together with the Assignments of Leases and Rents
referred to therein and each other mortgage delivered pursuant to Section
5.01(j), in each case as amended, the "Mortgages"), duly executed by the
appropriate Loan Party, together with:
(A) evidence that counterparts of the Mortgages have been
duly recorded in all filing or recording offices that the
Administrative Agent may reasonably deem necessary or desirable
in order to create a valid first and subsisting Lien on the
property described therein in favor of the Collateral Agent for
the benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "Mortgage
Policies") in form and substance, with endorsements and in amount
reasonably acceptable to the Administrative Agent, issued,
coinsured and reinsured by title insurers acceptable to the
Administrative Agent, insuring the Mortgages to be valid first
and subsisting Liens on the property described therein, free and
clear of all defects (including, but not limited to, mechanics'
and materialmen's Liens) and encumbrances, excepting only
Permitted Encumbrances, and providing for such other affirmative
insurance (including endorsements for future advances under the
Loan Documents and for mechanics' and materialmen's Liens) and
such coinsurance and direct access reinsurance as the
Administrative Agent may reasonably deem necessary or desirable,
(C) American Land Title Association form surveys, certified
to the Administrative Agent and the issuer of the Mortgage
Policies in a manner reasonably satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such
surveys is located and acceptable to the Administrative Agent,
showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces,
rights of
61
way, building set-back lines and other dimensional regulations
and the absence of encroachments, either by such improvements or
on to such property, and other defects, other than encroachments
and other defects reasonably acceptable to the Administrative
Agent,
(D) the Assignments of Leases and Rents referred to in the
Mortgages, duly executed by the appropriate Loan Party,
(E) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as
the Administrative Agent may reasonably deem necessary or
desirable,
(F) evidence of the insurance required by the terms of the
Mortgages, and
(G) evidence that all other action that the Administrative
Agent may deem reasonably necessary or desirable in order to
create valid first and subsisting Liens on the property described
in the Mortgages has been taken.
(ii) Within 60 days after the request of the Administrative
Agent, at the Borrower's sole cost and expense, the Borrower shall use
its reasonable best efforts to cause the Debt under this Agreement to
be rated by up to two independent rating agencies selected by the
Administrative Agent for the period through the Termination Date. The
rating, if any, of the Debt under this Agreement by up to two
independent rating agencies at any time shall be referred to herein as
the "Debt Rating."
(iii) Within 90 days after the Amendment Effective Date, the
Parent shall supplement Schedule 4.01(aa) hereto to set forth thereon
a complete and accurate list of all Material Contracts of each Loan
Party and its Subsidiaries involving, as of the date hereof, aggregate
consideration payable to or by such Loan Party or its Subsidiaries of
$10,000,000 to $19,999,999 in any year, and shall deliver to the
Administrative Agent such Schedule 4.01(aa) as so supplemented.
(iv) The Borrower shall maintain in a segregated account subject
to an account control agreement in favor of the First Lien Collateral
Agent on behalf of the Lenders and the First Lien Lenders cash and
Cash Equivalents in an amount equal to not less than (A) $18,500,000
through October 29, 2003 and (B) $9,250,000 from October 30, 2003
through April 29, 2004 (the "Release Date"). Subject to the foregoing
and the following sentence, no withdrawals may be made from such
account except (A) to make the Contingent Payments or (B) to make such
other payments as the Required Lenders under the First Lien Credit
Agreement (until such time as all Obligations under the First Lien
Loan Documents shall have been paid in full) may authorize in writing
in its discretion. Notwithstanding the foregoing, such account shall
be terminated and any amounts
62
remaining therein shall be released to the Borrower promptly after the
earlier to occur of (1) the satisfaction in full of all obligations,
if any, of the Loan Parties with respect to the Contingent Payments,
or (2) the Release Date, if, and only if, any claims that may require
the Borrower to make the Contingent Payments are released, settled or
compromised. Any earnings on the funds on deposit in such account
shall be disbursed to the Borrower from time to time.
(v) On the Amendment Effective Date, the Loan Parties shall
deliver to the title agent selected by the Collateral Agent fully
executed mortgage instruments intended to encumber certain real
property located in Alabama together with funds sufficient to cause
the filing of such instruments as delivered, such instruments and
funds to be held by the title agent in accordance herewith. As soon as
the Loan Parties have completed their efforts to minimize the charges
and taxes related to the recordation of such mortgage instruments, the
Loan Parties shall so advise the Collateral Agent, who shall then
instruct the title agent to cause such mortgage instruments (or
replacement instruments identical in all respects to such mortgage
instruments other as to recording tax information) to be recorded,
provided, that if (A) there shall at any time occur an Event of
Default or (B) the Loan Parties have not so advised the Collateral
Agent within 90 days after the Amendment Effective Date, the
Collateral Agent shall have the right to record such mortgages.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid or any
Lender Party shall have any Commitment hereunder, the Parent shall not, at any
time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Parent or any of its Subsidiaries as debtor, or sign or suffer to exist, or
permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens created under the Loan Documents and the First Lien
Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on Schedule
4.01(v) hereto;
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(iv) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii); provided, that no such Lien
shall extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases;
(v) Liens securing Subordinated Debt permitted under Section
5.02(b)(ii) which are subordinated and junior in priority to the Liens
securing the Loan Documents on terms and conditions acceptable to the
Agent and the Required Lenders and as set forth in the Intercreditor
and Subordination Agreement; and
(vi) Liens securing Permitted Refinancings, Receivables
Financings, Replacement Financings and Existing Debt Refinancings to
the extent permitted under Section 5.02(b), provided, that if the Debt
referred to in clauses (c) and (d) of the definition of "Assumed BTI
Debt" is the subject of an Existing Debt Refinancing, such Debt shall
not be secured by any Lien.
(b) Debt. Incur or permit any of its Subsidiaries to Incur any Debt,
provided, that any one or more of the Parent and its Subsidiaries may Incur
Debt as specified in the second paragraph of this Section 5.02(b) if, after
giving effect to the Incurrence of such Debt and the receipt and
application of the proceeds therefrom, the Parent and its Subsidiaries are
in compliance with Section 5.02(q) as of the date of the Incurrence of such
Debt. In the case of Incurrence of Debt pursuant to Section 5.02(b)(ii),
(iii), (v), (vi), (vii), (viii), (ix), (x) or (xi), or an Incurrence of
more than $1,000,000 principal amount of Debt pursuant to Section
5.02(b)(xiv), such compliance with Section 5.02(q) shall be evidenced by
delivery of a Financial Covenants Certificate to the Administrative Agent
no less than five Business Days before the date of such Incurrence.
Notwithstanding the foregoing, there shall be no increase in the amount of
Advances outstanding at any time under the First Lien Loan Documents after
the date hereof.
Subject to the first paragraph of this Section 5.02(b), the Parent and
its Subsidiaries (except as specified below) may Incur each and all of the
following:
(i) with respect to the Parent and its Subsidiaries, Debt under
the Loan Documents and the First Lien Loan Documents; provided, that
there shall be no increase in the amount of Advances outstanding at
any time under the First Lien Loan Documents after the date hereof;
(ii) Subordinated Debt of the Parent or the Borrower outstanding
at any time in an aggregate principal amount (together with
refinancings thereof) not to exceed $30,000,000, provided, that (A)
the maturity of such Subordinated Debt is at least three months
following the final maturity date of this Facility, (B) the
Administrative Agent and the Required Lenders are reasonably satisfied
that the Parent and its Subsidiaries shall be in compliance with the
provisions of the Loan Documents for the period from the Incurrence of
such Subordinated Debt through the final maturity date of this
Facility, and (C) the Required Lenders have approved the terms of the
subordination relating to such Subordinated Debt;
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(iii) (A) Capitalized Leases not to exceed in the aggregate
$70,000,000 (including the GECC Capital Lease, the NTFC Capital Lease
and any other Capitalized Leases constituting Surviving Debt) at any
time outstanding, and (B) in the case of Capitalized Leases to which
any Subsidiary of the Borrower or BTI is a party, Debt of the Borrower
or BTI of the type described in clause (i) of the definition of "Debt"
guaranteeing the Obligations of such Subsidiary under such Capitalized
Leases;
(iv) the Surviving Debt;
(v) unsecured Debt of the Parent (which shall not be guaranteed
by any other Loan Party) so long as (A)(1) the final maturity date of
such Debt is at least three months after the final maturity date of
this Facility and there is no amortization or required prepayment,
sinking fund or similar reduction of the principal amount of such Debt
prior to the date which is at least three months following the final
maturity date of this Facility, and (2) the Administrative Agent and
the Required Lenders are reasonably satisfied that the Parent and its
Subsidiaries shall be in compliance with the provisions of the Loan
Documents through the final maturity date of this Facility, and (B) at
least 75% of the net proceeds of such Debt is used to repay or
refinance the Debt under the First Lien Loan Documents and, to the
extent all such Debt under the First Lien Loan Documents has been
satisfied in full, to repay the Debt under the Loan Documents;
provided, that at least $75,000,000 in aggregate principal amount of
the Debt under the First Lien Loan Documents and, if applicable, the
Loan Documents, is so repaid or refinanced;
(vi) Debt of the Borrower under Hedge Agreements; provided, that
such agreements (A) are designed solely to protect the Borrower, BTI
or any Subsidiaries of the Borrower or BTI against fluctuations in
foreign currency exchange rates or interest rates and (B) do not
increase the Debt of the obligor thereunder outstanding at any time
other than as a result of fluctuations in foreign currency exchange
rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder;
(vii) Debt Incurred in connection with the refinancing of any
Debt permitted under Section 5.02(b) (other than the Debt under the
Loan Documents, Permitted Refinancings, Replacement Refinancings or
Receivables Refinancings), provided, that the Debt Incurred in
connection with such refinancing (A) has a scheduled maturity date
that is on or after the scheduled maturity date of the Debt 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 Debt being refinanced, determined immediately prior to giving
effect to such refinancing, (C) does not include any provisions that
may require mandatory prepayment of such Debt prior to its scheduled
maturity, other than scheduled prepayments taken into consideration in
determining compliance with clause (B) above and other provisions that
are not materially more burdensome to the obligor thereunder than any
such provisions included in the Debt being refinanced, (D) is Incurred
by the
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same Person that Incurred the Debt being refinanced and is not
Guaranteed or secured by any Lien unless the Debt being refinanced was
Guaranteed or secured by a Lien (in which case such Debt shall not be
Guaranteed by any Person that did not Guarantee the Debt being
refinanced and shall not be secured by a Lien on any asset that did
not secure the Debt being refinanced), (E) if the refinanced Debt was
subordinated to the Debt under the Loan Documents, such Debt is
subordinated to the Debt under the Loan Documents on terms no less
favorable to the Lenders than the terms on which the Debt being
refinanced was so subordinated, and (F) has an aggregate principal
amount which is equal to the Debt being refinanced, provided, that the
Debt Incurred in connection with such refinancing may have an
aggregate principal amount which is less than the Debt being
refinanced in the case of a refinancing of less than all of the Debt
referred to in clause (c) and clause (d) of the definition of "Assumed
BTI Debt" (each refinancing undertaken in accordance with this Section
5.02(b)(vii) shall be referred to herein as an "Existing Debt
Refinancing");
(viii) (A) Debt Incurred in connection with a Permitted
Refinancing, provided, that (1) the principal amount of such Debt
available under the Permitted Refinancing documents shall equal the
principal amount outstanding under the First Lien Facilities at the
time of the consummation of such Permitted Refinancing, (2) the
maturity date of such Permitted Refinancing is on or after June 30,
2006, and (3) effective as of the consummation of such Permitted
Refinancing, the interest rate and fees under the Loan Documents shall
be adjusted upwardly from time to time, if necessary, so that such
interest rate and fees exceed the interest rate and fees under the
Permitted Refinancing documents by the same amount by which such
interest rate and fees exceeded the interest rate and fees under the
First Lien Loan Documents immediately prior to such consummation;
(B) The Loan Parties shall have the right to cause such
Permitted Refinancing to be secured and guaranteed in a manner
and on terms that are identical in all material respects to the
manner in which and the terms on which the Debt under the First
Lien Loan Documents is secured and guaranteed immediately prior
to the consummation of such Permitted Refinancing. Effective as
of the consummation of such Permitted Refinancing, the Permitted
Refinancing lenders shall replace the Lenders under the First
Lien Loan Documents as parties to the Intercreditor and
Subordination Agreement, provided, that (1) there shall be no
changes to the provisions of the Intercreditor and Subordination
Agreement that would adversely affect the rights and obligations
thereunder of the Lenders and (2) the Permitted Refinancing
documents shall not modify, or prohibit the Borrower from
complying with, the provisions of this Agreement with respect to
the final maturity date of this Facility or any amortization of
Advances hereunder;
(ix) (A) Debt Incurred in connection with a Receivables
Financing, provided, that (1) the principal amount of such Debt
available under the
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Receivables Refinancing documents shall equal the principal amount
outstanding under the First Lien Facilities at the time of the
consummation of such Receivables Refinancing, (2) the maturity date of
such Receivables Refinancing is on or after June 30, 2006, (3) the
requirements of the Right of First Refusal specified below shall have
been satisfied, (4) effective as of the consummation of such
Receivables Financing, the interest rate and fees under the Loan
Documents shall be adjusted upwardly from time to time, if necessary,
so that such interest rate and fees exceed the interest rate and fees
under the Receivables Financing documents by the same amount by which
such interest rate and fees exceeded the interest rate and fees under
the First Lien Loan Documents immediately prior to such consummation,
and (5) effective as of the consummation of such Receivables
Financing, the Liens securing the First Lien Facilities shall be
released, and the Liens under the Loan Documents shall become senior
in priority to all other Liens (except with respect to the
Receivables, as defined in the First Lien Security Agreement), subject
to Permitted Liens;
(B) The Loan Parties shall have the right to cause such
Receivables Financing to be secured by all Receivables of all of
the Loan Parties. Effective as of the consummation of such
Receivables Financing, the Lenders shall release all Liens in
their favor on all Receivables of all of the Loan Parties, it
being understood that the Receivables Financing shall be secured
by a Lien on all such Receivables that is senior in priority to
all other Liens thereon (subject to Permitted Liens), and that
the Lenders shall not be entitled to any Lien on the Receivables.
Effective as of the consummation of such Receivables Financing,
the Receivables Financing lenders and the Lender Parties shall
replace the Intercreditor and Subordination Agreement with a
mutually acceptable intercreditor agreement pursuant to which
such lenders and the Lender Parties, among other things,
acknowledge that the Liens on the Receivables securing the
Receivables Financing shall be senior in priority to all other
Liens thereon (subject to Permitted Liens) and that the Liens on
all other collateral of the Loan Parties shall be senior in
priority to all other Liens thereon (subject to Permitted Liens
or as otherwise expressly permitted by the Loan Documents);
provided, that the documents evidencing the Receivables
Refinancing shall not modify, or prohibit the Borrower from
complying with, the provisions of this Agreement with respect to
the final maturity date of this Facility or any amortization of
Advances hereunder or otherwise adversely affect the rights and
obligations of the Lenders under the Intercreditor and
Subordination Agreement;
(C) As a condition to the consummation of any Receivables
Financing, the Lenders shall have a right of first refusal (the
"Right of First Refusal") pursuant to the provisions of this
paragraph to provide any Receivables Financing permitted under
this Section 5.02(b)(ix). If any Loan Party receives an offer
(the "Offer") from one or more Persons (it being understood that
such Person or Persons may be or include one or more of the
Lenders (the "Offeror") for a Receivables Financing that such
67
Loan Party desires to accept, such Loan Party shall provide a
written copy of such Offer to the Administrative Agent, who shall
provide such copy to all of the Lenders. If any one or more of
the Lenders shall elect, in their sole discretion, to provide the
Receivables Financing on terms and conditions identical in all
material respects to those contained in the Offer, such Lenders
shall so notify the Borrower in writing (the "Acceptance") no
later than 30 days following their receipt of the Offer from the
Borrower. The Acceptance shall constitute an commitment of such
Lenders to extend such Receivables Financing to the Loan Parties
to the same extent as the commitment proposed in the Offer,
subject only to acceptable final documentation (in customary
form) evidencing only such terms and conditions as shall be set
forth in or otherwise required by the Offer, provided, that if
more than one Lender delivers an Acceptance within such 30-day
period, the principal amount of the Receivables Financing
commitment of each Lender who so delivers an Acceptance shall
equal the aggregate principal amount of such Receivables
Financing divided by the number of Lenders who so deliver an
Acceptance. If none of the Lenders delivers the Acceptance to the
Loan Parties within such 30-day period or if one or more Lenders
delivers an Acceptance, but the parties are unable to agree upon
such acceptable final documentation within 60 days after the date
of the Acceptance, then the Loan Parties shall have the right to
accept the Offer from the Offeror and to consummate the related
Receivables Financing on terms and conditions identical in all
material respects to those contained in the Offer, provided,
further, that such consummation shall occur within 90 days after
such acceptance of the Offer from the Offeror;
(x) (A) Debt Incurred in connection with a Replacement Financing,
provided, that (1) effective as of the consummation of such
Replacement Financing, the Liens securing the First Lien Facilities
shall be released, and such Replacement Financing and this Facility
both shall be secured, on a pro rata basis, by Liens that are senior
in priority to all other Liens, subject to Permitted Liens, (2)
effective as of the consummation of such Replacement Financing, the
interest rate and fees under the Loan Documents shall be increased, if
necessary, to equal any higher rate of interest or amount of fees
provided under the Replacement Financing documents, (3) the maximum
aggregate principal amount of the Replacement Financing plus the
principal amount of this Facility shall not exceed $250,000,000, (4)
the documents evidencing the Replacement Financing shall not modify,
or otherwise prohibit the Borrower from complying with, the provisions
of this Agreement with respect to the final maturity date of this
Facility or any amortization of Advances hereunder, (5) the terms and
provisions of the Replacement Financing loan documents (including,
without limitation, the financial covenants and events of default
thereunder) shall be substantially similar in all material respects to
the terms and provisions contained in the First Lien Credit Agreement,
and (6) the Borrower shall have submitted to the Administrative Agent
prior to the consummation of such Replacement Financing
68
calculations reasonably demonstrating the Borrower's pro forma
compliance with the financial covenants in Section 5.02(q) of the
First Lien Credit Agreement after giving effect to all Debt to be
Incurred thereunder, during the period following the date of such
consummation through the final maturity date of this Facility;
(B) Effective as of the consummation of such Replacement
Financing, the Replacement Financing lenders and the Lender
Parties shall replace the Intercreditor and Subordination
Agreement with a mutually acceptable intercreditor agreement
pursuant to which such lenders and the Lender Parties, among
other things, acknowledge that the Liens securing such
Replacement Financing and this Facility shall secure the Debt
under such facilities on a pro rata basis and that such Liens
shall be senior in priority to all other Liens, subject to
Permitted Liens;
(xi) Intentionally omitted;
(xii) Debt in respect of Ordinary Course Obligations in an
aggregate amount not to exceed $10,000,000 at any time outstanding;
(xiii) Debt secured by a Permitted Lien, to the extent that such
Debt is Incurred in the ordinary course of business and is not the
subject of an enforcement, collection, execution, levy or foreclosure
proceeding and is not duplicative of Debt Incurred pursuant to Section
5.02(b)(xii); and
(xiv) Debt in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding, provided, that none of the Debt
referred to in Sections 5.02(b)(i) through (xiii) may be Incurred
pursuant to this Section 5.02(b)(xiv).
Notwithstanding any other provision under this Section 5.02(b), (A)
the maximum amount of Debt that the Parent or a Subsidiary may Incur
pursuant to this Section 5.02(b) shall not be deemed to be exceeded with
respect to any outstanding Debt, and the Loan Parties shall not be deemed
to be out of compliance with Section 5.02(q), solely as a result of
fluctuations in the exchange rates of currencies, and (B) any Loan Party
may Incur Debt owed to any other Loan Party.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof provided, that, the Parent or any of its
Subsidiaries may engage in activities that are ancillary or related to its
business.
(d) Mergers, Etc. Other than as required to consummate the Merger
Transactions, merge into or consolidate with any Person or permit any
Person to merge into it, or permit any of its Subsidiaries to do so, except
that:
(i) any Subsidiary of the Borrower may merge into or consolidate
with any other Subsidiary of the Borrower, provided, that, in the case
of any such
69
merger or consolidation, the Person formed by such merger or
consolidation shall be a Subsidiary of the Borrower, and provided,
further, that, in the case of any such merger or consolidation to
which a Subsidiary Guarantor is a party, the Person formed by such
merger or consolidation shall be a Subsidiary Guarantor;
(ii) subject to the conditions of Section 5.02(f)(vii), any
Subsidiary of the Borrower or BTI may merge into or consolidate with
any other Person or permit any other Person to merge into or
consolidate with it, provided, that the Person formed by such merger
or consolidation shall be a Subsidiary of the Borrower or BTI;
(iii) in connection with any sale or other disposition permitted
under Section 5.02(e) (other than clause (ii) thereof), any Subsidiary
of the Borrower or BTI may merge into or consolidate with any other
Person or permit any other Person to merge into or consolidate with
it;
(iv) BTI may merge into or consolidate with any Subsidiary of
BTI, the Borrower or any Subsidiary of the Borrower, provided, that
the Person formed by such merger or consolidation (other than the
Borrower) shall be a Subsidiary Guarantor;
(v) any Subsidiary of the Borrower may merge into or consolidate
with the Borrower, BTI or any Subsidiary of BTI, provided, that the
Person formed by such merger or consolidation (other than the
Borrower) shall be a Subsidiary Guarantor;
(vi) any Subsidiary of BTI may merge into or consolidate with
BTI, the Borrower or any Subsidiary of the Borrower or BTI, provided,
that the Person formed by such merger or consolidation (other than the
Borrower) shall be a Subsidiary Guarantor;
(vii) any Person may merge into the Borrower, provided, that
either (A)(1) the Parent and its Subsidiaries are in compliance with
Sections 5.02(a), (b) and (f) on the date of such merger and after
giving effect thereto, (2) the consideration for such merger consists
solely of Capital Stock of the Parent and cash in lieu of fractional
shares of such Capital Stock, (3) such Person has positive cash flow
measured by EBITDA minus Capital Expenditures, in each case, for the
most recent twelve full months preceding the date of such merger, (4)
immediately preceding the date of such merger, the value of the
Current Assets of such Person minus unsecured Debt for Borrowed Money
of such Person to be assumed in such merger minus Capitalized Leases
of such Person to be assumed in such merger is at least $1.00, and (5)
if the date of such merger shall occur within twelve months after the
Merger Closing Date, the Chief Financial Officer of the Borrower shall
certify to the Administrative Agent that the Minimum Required
Synergies shall be achieved prior to the date of such merger; or (B)
the Required Lenders consent to such merger; and
70
(viii) any Subsidiary of the Parent other than the Borrower may
merge into or consolidate with any other Person (other than a
Subsidiary of the Parent) or permit any such other Person to merge
into or consolidate with it (other than, in either such case, in a
transaction referred to in clause (ii) or (iii) above), provided, that
the requirements of clause (vii) above shall be satisfied with respect
to such Person and such merger or consolidation and provided, further,
that the Person formed by such merger or consolidation shall be a
Subsidiary Guarantor;
provided, that in each case, immediately after giving effect thereto, no
event shall occur and be continuing that constitutes a Default and in the
case of any such merger to which the Borrower is a party, (i) the Borrower
is the surviving corporation, and (ii) except as permitted by Section
5.02(f)(v), such merger does not adversely affect the Debt Rating, if any.
The calculations referred to in clauses (vii)(A)(3) and (vii)(A)(4) above
shall be made on a Consolidated basis with respect to all Persons that
shall become Subsidiaries of the Parent as a result of any individual
merger or consolidation to which such calculations shall apply.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase,
lease or otherwise acquire any assets, other than Inventory to be sold in
the ordinary course of its business, except:
(i) (A) sales of Inventory in the ordinary course of its business
and (B) sales and leases of assets, including, without limitation,
fiber sales in the ordinary course of its business consistent with
prudent business practice for companies engaged in similar businesses;
(ii) in a transaction authorized by Section 5.02(d) (other than
clause (iii) thereof);
(iii) sales of assets for cash and for fair value (A) in an
aggregate amount not to exceed (1) $50,000,000 in any Fiscal Year
beginning prior to the date on which all Obligations under the First
Lien Loan Documents or the Refinanced First Lien Loan Documents have
been paid in full, or (2) $75,000,000 in the aggregate for all such
sales occurring at any time prior to the date on which all Obligations
under the First Lien Loan Documents or the Refinanced First Lien Loan
Documents have been paid in full, and (B) in an aggregate amount not
to exceed $10,000,000 in any Fiscal Year beginning after the date on
which all Obligations under the First Lien Loan Documents or the
Refinanced First Lien Loan Documents have been paid in full;
(iv) sales of obsolete equipment for cash in an aggregate amount
not to exceed $25,000,000;
(v) any sale, lease, transfer or other disposition by the Parent
or any Subsidiary of the Parent to a Loan Party; and
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(vi) assignments, sales or other dispositions at fair market
value of accounts receivable representing amounts owed to any Loan
Party by any Person that is subject to a proceeding under the
Bankruptcy Code;
provided, that in the case of sales of assets pursuant to clause (iii)
above which (A) occur prior to the date on which all Obligations under the
First Lien Loan Documents or the Refinanced First Lien Loan Documents have
been paid in full, the Borrower shall, on the date of receipt by any Loan
Party or any of its Subsidiaries of the Net Cash Proceeds from such sale,
prepay the obligations under the First Lien Loan Documents or the
Refinanced First Lien Loan Documents pursuant to, and in the amount and
order of priority set forth therein, and to the extent all such obligations
have been satisfied, prepay the Advances pursuant to, and in the amount and
order of priority set forth in, Section 2.05(b)(ii), as specified therein,
and (B) occur after the date on which all Obligations under the First Lien
Loan Documents or the Refinanced First Lien Loan Documents have been paid
in full, the Borrower shall, on the date of receipt by any Loan Party or
any of its Subsidiaries of the Net Cash Proceeds from such sale, prepay the
Advances pursuant to, and in the amount and order of priority set forth in,
Section 2.05(b)(ii), as specified therein. Nothing in this Section 5.02(e)
shall restrict the Parent from issuing, selling, transferring or otherwise
disposing of, for or without consideration and by dividend or otherwise,
any Equity Interests in the Parent, or any option, warrant or other right
to purchase or otherwise acquire any Equity Interests in the Parent.
(f) Investments in Other Persons. Other than as required to consummate
the Merger Transactions, make or hold, or permit any of its Subsidiaries to
make or hold, any Investment in any Person, except:
(i) equity Investments by the Parent and its Subsidiaries in
their Subsidiaries outstanding on the date hereof and additional
Investments in Loan Parties;
(ii) loans and advances to employees in the ordinary course of
the business of the Parent and its Subsidiaries in an aggregate
principal amount not to exceed $1,000,000 at any time outstanding;
(iii) Investments in Cash Equivalents;
(iv) Investments existing on the date hereof and described on
Schedule 4.01(y) hereto;
(v) other Investments in an aggregate cash amount invested not to
exceed $10,000,000 plus 50% of the Net Cash Proceeds from any issuance
of Equity Interests; provided, however, that the consent of the
Required Lenders shall be required for any single Investment in which
the cash to be committed or paid exceeds $2,000,000; provided,
further, that with respect to Investments made under this clause (v):
(A) any newly acquired or organized Subsidiary of the Parent or any of
its Subsidiaries shall be a wholly owned Subsidiary thereof; (B)
immediately before and after giving effect thereto, no Default shall
have
72
occurred and be continuing or would result therefrom; and (C) any
company or business acquired or invested in pursuant to this clause
(v) shall be in the same line of business as the business of the
Parent or any of its Subsidiaries or shall be engaged in an ancillary
or related business;
(vi) extension of trade credit in the ordinary course of
business; and
(vii) an Investment through the acquisition by the Parent or any
of its Subsidiaries of all of the outstanding Capital Stock of another
Person solely in exchange for the Capital Stock of the Parent and cash
in lieu of fractional shares of such Capital Stock; provided, that
either (A)(1) such Person has positive cash flow measured by EBITDA
minus Capital Expenditures, in each case for the most recent twelve
full months preceding the date of such acquisition, (2) immediately
preceding the date of such acquisition, the value of the Current
Assets of such Person minus unsecured Debt for Borrowed Money of such
Person to be assumed in such acquisition minus Capitalized Leases of
such Person to be assumed in such acquisition is at least $1.00, and
(3) if the date of such acquisition shall occur within twelve months
after the Merger Closing Date, the Chief Financial Officer of the
Borrower shall certify to the Administrative Agent that the Minimum
Required Synergies shall be achieved prior to the date of such
acquisition; or (B) the Required Lenders consent to such acquisition,
provided, that the Person so acquired shall be a Subsidiary Guarantor,
and provided, further, that the calculations referred to in clauses
(A)(1) and (A)(2) above shall be made on a Consolidated basis with
respect to all Persons that shall become Subsidiaries of the Parent as
a result of any individual Investment to which such calculations shall
apply.
(g) Restricted Payments. Permit the Borrower, BTI or any Subsidiary of
the Borrower or BTI to declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its Equity Interests
now or hereafter outstanding, return any capital to its stockholders,
partners or members (or the equivalent Persons thereof) as such, make any
distribution of assets, Equity Interests, obligations or securities to its
stockholders, partners or members (or the equivalent Persons thereof) as
such or issue or sell any Equity Interests or accept any capital
contributions (other than capital contributions from the parent of the
Borrower, BTI or any Subsidiary of the Borrower or BTI to the extent
permitted under Section 5.02(f)(i)), or permit any of its Subsidiaries to
purchase, redeem, retire, defease or otherwise acquire for value any Equity
Interests in the Borrower, BTI or the Parent, except that, if no Event of
Default has occurred and is continuing, the Borrower, BTI and each
Subsidiary of the Borrower and BTI may declare and pay dividends in cash or
otherwise make distributions in cash to its parent, including the Parent,
provided, however, that such parent, including the Parent, may use the
proceeds of such cash dividends and other distributions only to pay (i)
scheduled interest and principal of Surviving Debt or any Debt issued or
Incurred by such parent, including the Parent, after the Amendment
Effective Date in accordance with the terms of Section 5.02(b) and (ii) in
the case of the Parent, cash in lieu of issuing fractional shares of its
Capital Stock in an aggregate amount not to exceed $250,000.
73
(h) Amendments of Constitutive Documents. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws or other
constitutive documents except for any amendment that could not reasonably
be expected to have a Material Adverse Effect. An amendment of (i) the
redemption provisions of the Series A Certificate of Designation in
connection with a sale of any of the Loan Parties, (ii) the redemption
provisions of the Series B Certificate of Designation in connection with a
sale of any of the Loan Parties, and (iii) the certificate of
incorporation, bylaws or other constitutive documents of the Parent and the
other Loan Parties as contemplated by the Merger Agreement shall not be
deemed to have a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required by generally accepted accounting
principles, or (ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled amortization or maturity thereof
in any manner, or make any payment in violation of any subordination terms
of, any Debt except (i) the payment or prepayment of any or all of the
Obligations under the First Lien Loan Documents or the Refinanced First
Lien Loan Documents in accordance with the terms thereof, (ii) subject to
the Intercreditor and Subordination Agreement, the payment or prepayment of
any or all of the Obligations under the Loan Documents, (iii) the Capital
Lease Amendment Payments, (iv) the Contingent Payments, (v) the payment or
prepayment of any or all of the Obligations under the NTFC Capital Lease or
the GECC Capital Lease in accordance with the terms thereof, and (vi)
regularly scheduled or required repayments or redemptions of Surviving
Debt, or amend, modify or change in any manner any term or condition of any
Surviving Debt, except for any amendment, modification or change of
Surviving Debt (except as provided in any of clauses (i) through (v) above
or otherwise in this Agreement) that (A) could not reasonably be expected
to have a Material Adverse Effect, (B) would not accelerate the scheduled
amortization of such Surviving Debt and (C) would not increase the
applicable interest rate of such Surviving Debt, or permit any of its
Subsidiaries to do any of the foregoing other than to prepay any Debt
payable to the Borrower or another Subsidiary of the Parent; provided,
that, notwithstanding the foregoing, the Parent and its Subsidiaries may
(1) consummate any Permitted Refinancing, Receivables Financing,
Replacement Financing or Existing Debt Refinancing (and thereafter make any
regularly scheduled or required repayments or redemptions of Debt incurred
in connection with any such Permitted Refinancing, Receivables Financing,
Replacement Financing or Existing Debt Refinancing) and (2) refinance the
Debt under the Loan Documents in full or, pursuant to Section
5.02(b)(v)(B), in part.
(k) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets except (i) in favor of (A) the Secured Parties
under this Agreement or (B) the Secured Parties as provided and defined in
the First Lien Loan Documents or (ii) in connection with (A) any Surviving
Debt or (B) any Capitalized Lease permitted under Section 5.02(b)(iii)
solely to the extent that such Capitalized Lease prohibits a Lien on the
property subject thereto.
74
(l) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to
do so, other than any Subsidiary the sole assets of which consist of its
interest in such partnership or joint venture.
(m) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions.
(n) Formation of Subsidiaries. Organize, or permit any Subsidiary to
organize, any new Subsidiary except (a) as permitted under Section
5.02(f)(i) or (b) so long as (i) there exists no Default or Event of
Default both before and after giving effect to the creation of any new
wholly owned Subsidiary and the transfer of any assets to such wholly owned
Subsidiary, (ii) immediately upon the creation of any new wholly owned
Subsidiary, such Subsidiary shall become a Subsidiary Guarantor, (iii) the
applicable Loan Party, BTI or any Subsidiary of the Borrower or BTI owning
any portions of the stock of any such new wholly owned Subsidiary
immediately delivers all shares of stock of the new wholly owned Subsidiary
to the First Lien Collateral Agent subject to the provisions of the
Intercreditor and Subordination Agreement, for the benefit of the Lender
Parties and the Lender Parties under the First Lien Loan Documents,
together with stock powers executed in blank and executes and delivers to
the First Lien Collateral Agent, and immediately delivers to the First Lien
Collateral Agent under the First Lien Loan Documents, pledge agreements
pledging all such stock to secure the Obligations and the Obligations under
the First Lien Loan Documents, in form substantially similar to the
applicable Loan Document.
(o) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Subsidiaries to declare or pay dividends
or other distributions in respect of its Equity Interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, the Borrower, BTI or any Subsidiary of the Borrower
or BTI (whether through a covenant restricting dividends, loans, asset
transfers or investments, a financial covenant or otherwise), except (i)
the Loan Documents, (ii) the First Lien Loan Documents, (iii) any agreement
or instrument evidencing Surviving Debt (including, without limitation, the
GECC Capital Lease and the NTFC Capital Lease) and (iv) any agreement in
effect at the time such Subsidiary becomes a Subsidiary of the Borrower or
BTI, so long as such agreement was not entered into solely in contemplation
of such Person becoming a Subsidiary of the Borrower or BTI.
(p) Amendment, Etc., of Material Contracts. Cancel or terminate
(except in accordance with the terms thereof) any Material Contract, or
consent to or accept any cancellation or termination thereof (except in
accordance with the terms thereof), amend or otherwise modify any such
Material Contract or give any consent, waiver or approval thereunder, waive
any default under or breach of any such Material Contract, agree in any
manner to any other amendment, modification or change of any term or
condition of any such Material Contract or take any other action in
connection with any such Material
75
Contract that would impair the value of the interest or rights of any Loan
Party thereunder or that would impair the interest or rights of any Agent
or any Lender Party, or permit any of its Subsidiaries to do any of the
foregoing, except, in each of the foregoing cases, where to do so would not
be reasonably likely to have a Material Adverse Effect.
(q) Financial Condition Covenants.
(i) Maximum Capital Expenditures. Make or commit to make, or
allow any of its Subsidiaries to make or commit to make, Capital
Expenditures exceeding, in the aggregate for each Fiscal Year until
the Termination Date, the greater of (A) EBITDA for such Fiscal Year,
less the sum of (I) cash interest expense for such Fiscal Year, plus
(II) amounts paid under Section 2.03 and all principal payments under
the GECC Capital Lease and the NTFC Capital Lease (a) during Fiscal
Year 2002 (for purposes of calculating the maximum Capital
Expenditures for Fiscal Year 2003) or (b) during Fiscal Year 2004 or
the applicable Fiscal Year thereafter (for purposes of calculating the
maximum Capital Expenditures for Fiscal Year 2004 or the applicable
succeeding Fiscal Year, as the case may be), or (B) $10,000,000 for
Fiscal Year 2003 and $15,000,000 for each Fiscal Year thereafter. For
purposes of calculating maximum Capital Expenditures, the amount
calculated in item (II) above shall be deemed not to have exceeded
$20,000,000 for Fiscal Year 2004 and shall be deemed not to have
exceeded $30,000,000 for Fiscal Year 2005. Compliance with this
Section 5.02(q)(i) shall be measured at the end of each Fiscal Year,
commencing with Fiscal Year 2003. To the extent the Borrower's actual
Capital Expenditures for any Fiscal Year are less than the maximum
Capital Expenditures for such Fiscal Year computed as aforesaid, the
Borrower may increase Capital Expenditures for the subsequent Fiscal
Year by an amount equal to the amount by which such maximum Capital
Expenditures exceed such actual Capital Expenditures, but not by an
amount which exceeds $5,000,000.
For the purposes of this Section 5.02(q)(i) only, Capital
Expenditures shall not include the Contingent Payments and any payment
made in respect of that certain litigation arising from or in relating
in any way to the use of rights of way granted to the Borrower by
Mississippi Power Company; provided, that, to the extent that any such
payment made in respect of such litigation is equal to or greater than
$5,000,000, the Borrower shall deliver to the Agent prior to the
payment thereof, a statement that the Borrower will have not less than
$11,500,000 in cash and Cash Equivalents (excluding any insurance
proceeds deposited with the Collateral Agent as described in clause
(C) of the proviso in the definition of "Extraordinary Receipts")
after making such payment, certified by the Chief Financial Officer of
the Parent.
(ii) Senior Debt Ratio. (A) Commencing on the last day of the
fiscal quarter ending December 31, 2003 and, measured on the last day
of each fiscal quarter thereafter until the Termination Date, the
Senior Debt Ratio shall not exceed 4.0x. On the date that any Senior
Debt permitted hereunder is Incurred,
76
the Senior Debt Ratio shall not exceed 4.0x. Whenever the Senior Debt
Ratio is computed for any purpose under this Agreement, if the
computation is being made with respect to a period that ends: (1) on
the last day of a fiscal quarter, then the Senior Debt and EBITDA, for
purposes of such computation, shall be the Senior Debt and EBITDA for
the twelve-month period ended on such last day of such fiscal quarter,
or (2) on a day other than the last day of a fiscal quarter, then the
Senior Debt and EBITDA, for purposes of such computation, shall be the
Senior Debt and EBITDA for the most recently completed twelve-month
period.
(B) Solely for the purposes of calculating the Senior Debt
Ratio for purposes of clause (ii)(A) above and for purposes of
calculating the Applicable Eurodollar Rate Margin or Applicable
Base Rate Margin, EBITDA may be adjusted upward (only to the
extent that lost revenue exceeds new revenue) to account for any
reduction in EBITDA resulting from lost revenue from PRI accounts
of the Borrower and its Subsidiaries and IFN accounts related to
the sale of capacity along the fiber network during the period
commencing December 31, 2002 and ending June 30, 2004, determined
on the last day of each fiscal quarter during such period, for
the period of the four consecutive fiscal quarters then ended, in
an aggregate amount not to exceed the amount set forth opposite
such date below:
Period Amount
------ ------
December 31, 2003 $7,800,000
March 31, 2004 $7,300,000
June 30, 2004 $3,100,000
Any such adjustment to EBITDA under this clause (ii)(B) shall be
calculated on a pro-rated net revenue basis multiplied by 90% for the
applicable period pursuant to a compliance schedule reasonably
satisfactory to the Administrative Agent.
(iii) Total Leverage Ratio. On December 31, 2003, the Total
Leverage Ratio shall not exceed 5.75x and commencing on the last day
of the fiscal quarter ending March 31, 2004, and measured on the last
day of each fiscal quarter thereafter until the Termination Date, the
Total Leverage Ratio shall not exceed 5.5x. Whenever the Total
Leverage Ratio is computed for any purpose under this Agreement, if
the computation is being made with respect to a period that ends (A)
on the last day of a fiscal quarter, then the Consolidated debt and
Consolidated EBITDA, for purposes of such computation, shall be the
Consolidated debt and Consolidated EBITDA for the twelve-month period
ended on such last day of such fiscal quarter, or (B) on a day other
than the last day of a fiscal quarter, then the Consolidated debt and
Consolidated EBITDA, for purposes of such computation, shall be the
Consolidated debt and Consolidated EBITDA for the most recently
completed twelve-month period.
77
(iv) Interest Coverage Ratio. Commencing on the last day of the
fiscal quarter ending December 31, 2003, and measured on the last day
of each fiscal quarter thereafter until the Termination Date, the
Interest Coverage Ratio shall not be less than 2.5x.
(v) Minimum Cash. Permit at any time the sum of (A) cash-on-hand
and (B) Cash Equivalents, in each case not subject to a Lien (other
than Liens in favor of the First Lien Collateral Agent pursuant to the
First Lien Loan Documents and Liens in favor of the Collateral Agent
pursuant to the Loan Documents) or the use of which is otherwise
restricted, to be less than (1) $10,000,000 from the Amendment
Effective Date through October 29, 2003, (2) $19,250,000 from October
30, 2003 through such date on which the Borrower is no longer required
to maintain a segregated account pursuant to Section 5.01(n)(iv) and
(3) $10,000,000 thereafter. The amount on deposit in the segregated
account maintained pursuant to Section 5.01(n)(iv) shall not be deemed
to constitute cash-on-hand or Cash Equivalents for purposes of this
Section 5.02(q)(v).
In the event that the Borrower reverses any restructuring charge
previously included in EBITDA and used in the calculation of maximum Capital
Expenditures or the Senior Debt Ratio pursuant to this Section 5.02(q), it shall
be required to demonstrate retroactive compliance with such financial covenants
set forth above in this Section 5.02(q) for the affected periods.
In the event that the actual Capital Expenditures, the Senior Debt
Ratio, or the Total Leverage Ratio exceeds the applicable amount set forth above
in this Section 5.02(q) or the Interest Coverage Ratio no longer exceeds the
applicable amount set forth above in this Section 5.02(q), or the aggregate
amount of cash and Cash Equivalents is less than the required amount set forth
above in this Section 5.02(q), then within 60 days after the date of the
applicable Financial Covenants Certificate, the Borrower shall (i) in the case
of an excess with respect to Capital Expenditures, prepay the Advances by the
amount by which such actual Capital Expenditures exceed the maximum Capital
Expenditures, as set forth in Section 2.05(b)(v), (ii) in the case of an excess
with respect to the Senior Debt Ratio, the Total Leverage Ratio or the Interest
Coverage Ratio, as the case may be, prepay the Advances to the extent necessary
to comply with the Senior Debt Ratio, the Total Leverage Ratio or the Interest
Coverage Ratio, as applicable, as set forth in Section 2.05(b)(vi), or (iii)
increase the amount of cash and Cash Equivalents to no less than the amount
required by this Section 5.02(q), as applicable, and the Borrower's failure to
comply with the applicable covenant in this Section 5.02(q) shall not constitute
a Default unless the Borrower fails to take the applicable corrective action
specified above within such 60-day period.
SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid
or any Lender Party shall have any Commitment hereunder, the Borrower shall
furnish to the Agents and the Lender Parties:
78
(a) Default Notice. As soon as possible and in any event within two
days after the occurrence of each Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect continuing
on the date of such statement, a statement of the Chief Financial Officer
of the Borrower setting forth details of such Default or any such event,
development or occurrence and the action that the Borrower has taken and
proposes to take with respect thereto.
(b) Annual Financials. As soon as available and in any event within 90
days after the end of each Fiscal Year, a copy of an annual report on Form
10-K for such year for the Parent and its Subsidiaries, including therein a
Consolidated balance sheet of the Parent and its Subsidiaries as of the end
of such Fiscal Year and Consolidated statement of income and a Consolidated
statement of cash flows of the Parent and its Subsidiaries for such Fiscal
Year, in each case accompanied by an opinion acceptable to the Required
Lenders of BDO Xxxxxxx, LLP or other independent public accountants of
recognized standing acceptable to the Required Lenders, together with (i) a
certificate of such accounting firm to the Lender Parties stating that in
the course of the regular audit of the business of the Parent and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting firm
has obtained no knowledge that a Default has occurred and is continuing, or
if, in the opinion of such accounting firm, a Default has occurred and is
continuing, a statement as to the nature thereof, (ii) a report setting
forth all of the Borrower's IFN revenues and PRI revenues by circuit (or as
otherwise agreed by the Administrative Agent), (iii) a Financial Covenants
Certificate stating the Borrower's calculation of the ratios set forth in
Section 5.02(q) for the last quarter of such Fiscal Year and maximum
Capital Expenditures for such Fiscal Year, a statement as to the amount of
proceeds from any sale of assets, including obsolete equipment, received
during such Fiscal Year (provided, that any such sale of assets
individually or as part of a series of related transactions resulted in
receipt of proceeds in excess of $100,000 in such Fiscal Year), and a
statement of the Borrower's calculation of Excess Cash Flow for such Fiscal
Year, each with supporting documentation and in reasonable detail, and (iv)
a Financial Covenants Certificate stating that the representations and
warranties in each Loan Document are correct in all material respects on
and as of such date, other than any such representations or warranties
that, by their terms, refer to a specific date other than such date, in
which case as of such date and that no Default has occurred and is
continuing or, if a Default has occurred and is continuing, a statement as
to the nature thereof and the action that the Borrower has taken and
proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event within
45 days after the end of each of the first three quarters of each Fiscal
Year, (i) Consolidated balance sheet of the Parent and its Subsidiaries as
of the end of such quarter and Consolidated statement of income and a
Consolidated statement of cash flows of the Parent and its Subsidiaries for
the period commencing at the end of the previous fiscal quarter and ending
with the end of such fiscal quarter and Consolidated statement of income
and a Consolidated statement of cash flows of the Parent and its
Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or
period of the preceding Fiscal Year, (ii) a report setting forth all
79
of the Borrower's IFN revenues and PRI revenues by circuit (or as otherwise
agreed by the Administrative Agent) for the preceding twelve months, and
(iii) a Financial Covenants Certificate stating the Borrower's calculation
of the ratios set forth in Section 5.02(q) for such fiscal quarter with
supporting documentation, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the Chief Financial
Officer of the Parent as having been prepared in accordance with GAAP (with
respect to item (i)), and stating that the representations and warranties
in each Loan Document are correct in all material respects on and as of
such date, other than any such representations or warranties that, by their
terms, refer to a specific date other than such date, in which case as of
such date and that no Default has occurred and is continuing or, if a
Default has occurred and is continuing, a statement as to the nature
thereof and the action that the Parent has taken and proposes to take with
respect thereto.
(d) Monthly Financials. As soon as available and in any event within
30 days after the end of each month, (i) a Consolidated balance sheet of
the Parent and its Subsidiaries as of the end of such month, a Consolidated
statement of income and a Consolidated statement of cash flows of the
Parent and its Subsidiaries for the period commencing at the end of the
previous month and ending with the end of such month, and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Parent and its Subsidiaries for the period commencing at the end of the
previous Fiscal Year and ending with the end of such month, setting forth
in each case in comparative form the corresponding figures for the
preceding month, all in reasonable detail and duly certified by the Chief
Financial Officer of the Parent, and (ii) a condensed receivables aging
report, prepared in accordance with the Borrower's customary practice from
time to time, for the Borrower, BTI and the Subsidiaries of the Borrower
and BTI for such month with respect to their major lines of business and
any significant specific accounts review necessary to support bad debt
allowances, certified by the Chief Financial Officer of the Parent as
fairly and accurately reporting the information described therein, and
(iii) a certificate of the Chief Financial Officer of the Parent setting
forth EBITDA for the last twelve months then ended.
(e) Forecasts and Budgets. As soon as available and in any event no
later than 45 days after the end of each Fiscal Year, the following
prepared by management of the Borrower, in form satisfactory to the
Administrative Agent (i) balance sheets, income statements and cash flow
statements on a monthly and annual basis for the Fiscal Year following such
prior Fiscal Year; (ii) balance sheets, income statements and cash flow
statements on an annual basis for each Fiscal Year thereafter until the
Termination Date; and (iii) a selling, general and administrative expense
budget and a capital expenditure budget for the Borrower, BTI and the
Subsidiaries of the Borrower and BTI for each Fiscal Year in form and
substance reasonably satisfactory to the Administrative Agent.
(f) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f), and promptly
after the occurrence thereof, notice of any adverse change
80
in the status or the financial effect on any Loan Party or any of its
Subsidiaries of the Disclosed Litigation from that described on Schedule
4.01(f) hereto.
(g) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files with the
Securities and Exchange Commission or any governmental authority that may
be substituted therefor, or with any national securities exchange.
(h) Creditor Reports. Promptly after the furnishing thereof, copies of
any statement or report furnished to any holder of Debt securities of any
Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lender Parties pursuant to any other clause of this
Section 5.03.
(i) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of
its Subsidiaries under or pursuant to any Material Contract or material
instrument, indenture, loan or credit or similar agreement and, from time
to time upon request by the Administrative Agent, such information and
reports regarding the related documents, the Material Contracts and such
instruments, indentures and loan and credit and similar agreements as the
Administrative Agent may reasonably request.
(j) Revenue Agent Reports. Within 10 days after receipt, copies of all
Revenue Agent Reports (Internal Revenue Service Form 886), or other written
proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the meaning of Section 1504(a)(1)
of the Internal Revenue Code) of which the Borrower is a member aggregating
$2,000,000 or more.
(k) Tax Certificates. (x) Promptly, and in any event within 15
Business Days after the due date (with extensions) for filing the final
Federal income tax return in respect of each taxable year, a certificate (a
"Tax Certificate"), signed by the President or the Chief Financial Officer
of the Borrower, stating that the Borrower has paid to the Internal Revenue
Service or other taxing authority, the full amount that the Borrower is
required to pay in respect of Federal income tax for such year and that the
Borrower, BTI and the Subsidiaries of the Borrower and BTI have received
any amounts payable to them, and have not paid amounts in respect of taxes
(Federal, state, local or foreign) in excess of the amount they are
required to pay, under the Tax Agreement in respect of such taxable year,
and (y) all correspondence between the Borrower and the Internal Revenue
Service or other taxing authority relating to any request for, grant of and
compliance with any extensions granted with respect to the filing of any
income tax returns.
(l) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to
81
know that any ERISA Event has occurred, a statement of the Chief Financial
Officer of the Borrower describing such ERISA Event and the action, if any,
that such Loan Party or such ERISA Affiliate has taken and proposes to take
with respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA, a copy of such records, documents and
information.
(ii) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any Plan or
to have a trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that is reasonably expected to be
incurred, by such Loan Party or any ERISA Affiliate in connection with any
event described in clause (A) or (B).
(m) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(n) Real Property. (i) As soon as available and in any event within 30
days after the end of each Fiscal Year, a report supplementing Schedules
4.01(w) and 4.01(x) hereto, including an identification of all owned and
leased real property disposed of by the Borrower, BTI or any Subsidiaries
of the Borrower or BTI during such Fiscal Year, a list and description
(including the street address, county or other relevant jurisdiction,
state, record owner, book value thereof and, in the case of leases of
property, lessor, lessee, expiration date and annual rental cost thereof)
of all real property acquired or leased during such Fiscal Year and a
description of such other changes in the information included in such
Schedules as may be necessary for such Schedules to be accurate and
complete and (ii) promptly inform the Administrative Agent of any
investments in any of the real property listed on Schedule 4.01(w) hereto
proposed to be made by any Loan Party or Loan Parties such that thereafter,
the value thereof shall exceed $1,000,000 individually.
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(o) Insurance. As soon as available and in any event within 30 days
after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as
any Agent, or any Lender Party through the Administrative Agent, may
reasonably specify.
(p) Intentionally omitted.
(q) New Accounts. Promptly after opening an account with a bank or
other financial institution not subject to an account control agreement
referred to in Section 3.01(b)(ii)(H), notification thereof.
(r) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Agent, or any
Lender Party through the Administrative Agent, may from time to time
reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail
to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause
(ii) within three Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) any Loan Party shall fail to perform or observe any term, covenant
or agreement contained in Xxxxxxx 0.00(x), 0.00, 0.00(x), (x), (x), (x) or
(m), 5.02 or 5.03; provided, that (i) failure to comply with the covenant
set forth in Section 2.05(b)(ii) or (iii) shall not constitute an Event of
Default unless and until such failure shall remain unremedied for three
Business Days and (ii) failure to comply with the covenant set forth in
Section 2.05(b)(iv) shall not constitute an Event of Default unless and
until such failure shall remain unremedied for 10 Business Days; provided,
further, that failure to comply with the covenant set forth in Section
5.02(q)(i), (ii), (iii, (iv) or (v) shall not constitute an Event of
Default unless the Borrower fails to prepay the Advances to the extent
specified in Section 2.05(b)(v) or Section 5.02(b)(vi) or increase the
aggregate amount of cash and Cash Equivalents to no less than the amount
required by Section 5.02(q)(v), as applicable, within the 60-day period
referred to therein; or
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(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by any Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt that is outstanding in a principal amount (or, in the case of
any Hedge Agreement, an Agreement Value) of at least $2,000,000 either
individually or in the aggregate (but excluding Debt outstanding hereunder)
of such Loan Party or such Subsidiary (as the case may be), when the same
becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise); or any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt to
mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be made,
in each case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
any Loan Party or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f); or
(g) any judgments or orders for the payment of money (individually or
in the aggregate) in excess of $5,000,000 (other than in connection with
the Contingent Payments) shall be rendered against any Loan Party or any of
its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgments or orders or (ii) there shall
be any period of 10 consecutive days during which a stay of enforcement of
any such judgments or orders, by reason of a pending appeal or otherwise,
shall not be in effect; or
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(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party to it, or any such Loan
Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to Section
3.01 or 5.01(j) shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority lien on and
security interest in the Collateral purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $2,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $2,000,000 or requires
payments exceeding $1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $1,000,000; or
(o) an "Event of Default" (as defined in any Mortgage) shall have
occurred and be continuing; or
(p) any party to the Merger Agreement shall fail to perform or observe
any term, covenant or agreement contained in Section 8.21 of the Merger
Agreement on its
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part to be performed or observed and such failure shall remain unremedied
for 15 Business Days;
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, that in the event of an actual or deemed entry of an order
for relief with respect to the Borrower under the Bankruptcy Code, the Notes,
all such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor,
jointly and severally, hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on
any date of a required prepayment or by acceleration, demand or otherwise, of
all Obligations of each other Loan Party now or hereafter existing under or in
respect of the Loan Documents (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the
foregoing Obligations), whether direct or indirect, absolute or contingent, and
whether for principal, interest, premiums, fees, indemnities, contract causes of
action, costs, expenses or otherwise (such obligations being the "Guaranteed
Obligations"), and agrees to pay any and all reasonable expenses (including,
without limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any other Secured Party in enforcing any rights under
this Agreement or any other Loan Document. Without limiting the generality of
the foregoing, each Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) Each Guarantor, and by its acceptance of this Agreement, the
Administrative Agent and each other Secured Party, hereby confirms that it is
the intention of all such Persons that this Agreement and the Obligations of
each Guarantor hereunder not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar foreign, federal or state law to the
extent applicable to this Guaranty and the Obligations of each Guarantor
hereunder. To effectuate the foregoing intention, the Administrative Agent, the
other Lender Parties and the Guarantors hereby irrevocably agree that the
obligations of each Guarantor under this Guaranty at any time shall be limited
to the maximum amount as will result in the Obligations of such Guarantor under
this Agreement not constituting a fraudulent transfer or conveyance.
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(c) Each Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Secured Party under
this Agreement or any other guaranty, such Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Guarantor and each
other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender with respect thereto. The obligations of each Guarantor under or in
respect of this Agreement are independent of the Guaranteed Obligations or any
other obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Guarantor to enforce this Agreement, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of each Guarantor under this Agreement shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of, or consent to departure
from, any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any Loan Party under the
Loan Documents or any other assets of any Loan Party or any of its
Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party
now or hereafter known to
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such Secured Parties (each Guarantor waiving any duty on the part of the
Secured Parties to disclose such information);
(g) the failure of any other Person to execute or deliver this
Agreement, any Guaranty Supplement or any other guaranty or agreement or
the release or reduction of liability of any Guarantor or other guarantor
or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
any Secured Party that might otherwise constitute a defense available to,
or a discharge of, any Loan Party or any other guarantor or surety.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Secured Party
or any other Person upon the insolvency, bankruptcy or reorganization of the
Borrower or any other Loan Party or otherwise, all as though such payment had
not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Agreement and any requirement that
any Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Agreement and acknowledges that this Agreement is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of such
Guarantor hereunder.
(d) Each Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to such Guarantor any matter,
fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party or any
of its Subsidiaries now or hereafter known by such Secured Party.
(e) Each Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that
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the waivers set forth in Section 7.02 and this Section 7.03 are knowingly made
in contemplation of such benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower or any other Loan Party or any other inside
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's Obligations under or in respect of this Agreement or any other
Loan Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Secured Party against the Borrower,
any other Loan Party or any other insider guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under contract, statute
or common law, including, without limitation, the right to take or receive from
the Borrower, any other Loan Party or any other insider guarantor, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until
all of the Guaranteed Obligations and all other amounts payable under this
Agreement shall have been paid in full in cash. If any amount shall be paid to
any Guarantor in violation of the immediately preceding sentence at any time
prior to the latest of
(a) the payment in full in cash of the Guaranteed Obligations and all
other amounts payable under this Agreement, and (b) the Termination Date, such
amount shall be received and held in trust for the benefit of the Secured
Parties, shall be segregated from other property and funds of such Guarantor and
shall forthwith be paid or delivered to the Administrative Agent in the same
form as so received (with any necessary endorsement or assignment) to be
credited and applied to the Guaranteed Obligations and all other amounts payable
under this Agreement, whether matured or unmatured, in accordance with the terms
of the Loan Documents, or to be held as collateral for any Guaranteed
Obligations or other amounts payable under this Agreement thereafter arising. If
(i) any Guarantor shall make payment to any Secured Party of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Agreement shall have been paid in full in cash, and
(iii) the Termination Date shall have occurred, the Secured Parties will, at
such Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by such
Guarantor pursuant to this Agreement.
SECTION 7.05. Guaranty Supplements. Upon the execution and delivery by
any Person of a guaranty supplement in substantially the form of Exhibit I
hereto (each, a "Guaranty Supplement"), (a) such Person shall be referred to as
an "Additional Guarantor" and shall become and be a Guarantor hereunder, and
each reference in this Agreement to a "Guarantor" shall also mean and be a
reference to such Additional Guarantor, and each reference in any other Loan
Document to a "Subsidiary Guarantor" shall also mean and be a reference to such
Additional Guarantor, and (b) each reference herein to "this Guaranty,"
"hereunder," "hereof" or words of like import referring to this Agreement, and
each reference in any other Loan Document to the "Guaranty," "thereunder,"
"thereof" or words of like import referring to this Agreement, shall mean and be
a reference to this Agreement as supplemented by such Guaranty Supplement.
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SECTION 7.06. Subordination. Each Guarantor hereby subordinates any
and all debts, liabilities and other Obligations owed to such Guarantor by each
other Loan Party (the "Subordinated Obligations") to the Guaranteed Obligations
to the extent and in the manner hereinafter set forth in this Section 7.06:
(a) Prohibited Payments, Etc. Except during the continuance of a
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
may receive regularly scheduled payments from any other Loan Party on
account of the Subordinated Obligations. After the occurrence and during
the continuance of any Default (including the commencement and continuation
of any proceeding under any bankruptcy law relating to any other Loan
Party), however, unless the Required Lenders otherwise agree, no Guarantor
shall demand, accept or take any action to collect any payment on account
of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, each Guarantor agrees
that the Secured Parties shall be entitled to receive payment in full in
cash of all Guaranteed Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any bankruptcy law,
whether or not constituting an allowed claim in such proceeding
("Post-Petition Interest")) before such Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any proceeding
under any Bankruptcy Law relating to any other Loan Party), each Guarantor
shall, if the Administrative Agent so requests, collect, enforce and
receive payments on account of the Subordinated Obligations as trustee for
the Secured Parties and deliver such payments to the Administrative Agent
on account of the Guaranteed Obligations (including all Post-Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of
such Guarantor under the other provisions of this Agreement.
(d) Administrative Agent Authorization. After the occurrence and
during the continuance of any Default (including the commencement and
continuation of any proceeding under any Bankruptcy Law relating to any
other Loan Party), the Administrative Agent is authorized and empowered
(but without any obligation to so do), in its discretion, (i) in the name
of each Guarantor, to collect and enforce, and to submit claims in respect
of, Subordinated Obligations and to apply any amounts received thereon to
the Guaranteed Obligations (including any and all Post-Petition Interest),
and (ii) to require each Guarantor (A) to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and (B) to pay any
amounts received on such obligations to the Administrative Agent for
application to the Guaranteed Obligations (including any and all
Post-Petition Interest).
SECTION 7.07. Continuing Guaranty; Assignments. This Agreement is a
continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment
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in full in cash of the Guaranteed Obligations and all other amounts payable
under this Agreement and (ii) the Termination Date, (b) be binding upon the
Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Secured Parties and their successors, transferees and
assigns. Without limiting the generality of clause (c) of the immediately
preceding sentence, subject to Section 9.07, any Secured Party may assign or
otherwise transfer all or any portion of its rights and obligations under this
Agreement (including, without limitation, all or any portion of its Commitments,
the Advances owing to it and the Note or Notes held by it) to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Secured Party herein or otherwise, in each case
as and to the extent provided in Section 9.07. No Guarantor shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Secured Parties.
SECTION 7.08. Release of Guarantor. In the event that all of the
capital stock of one or more Guarantors is sold or otherwise disposed of (except
to the Borrower, BTI or any Subsidiary of the Borrower or BTI) or liquidated in
compliance with the requirements of the this Agreement (or such sale or other
disposition or liquidation has been approved in writing by the Required Lenders)
and the proceeds of such sale, disposition or liquidation are applied in
accordance with the provisions of this Agreement, to the extent applicable, such
Guarantor shall be released from this Agreement and this Agreement shall, as to
each such Guarantor or Guarantors, terminate, and have no further force or
effect (it being understood and agreed that the sale of one or more persons that
own, directly or indirectly, all of the capital stock or partnership interests
of any Guarantor shall be deemed to be a sale of such Guarantor for the purposes
of this Section 7.08).
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender Party hereby
appoints and authorizes each Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan Documents (including,
without limitation, enforcement or collection of the Notes), no Agent shall be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that no Agent shall be required to take any action that
exposes such Agent to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender Party prompt notice
of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the
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foregoing, each Agent: (a) may treat the payee of any Note as the holder thereof
until, in the case of the Administrative Agent, the Administrative Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible Assignee, as
assignee, or, in the case of any other Agent, such Agent has received notice
from the Administrative Agent that it has received and accepted such Assignment
and Acceptance, in each case as provided in Section 9.07; (b) may consult with
legal counsel (including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Loan Document on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party; (e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any other
instrument or document furnished pursuant thereto; and (f) shall Incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 8.03. GECC and Affiliates. With respect to any Commitments,
any Advances made by it and any Notes issued to it, GECC shall have the same
rights and powers under the Loan Documents as any other Lender Party and may
exercise the same as though it were not an Agent; and the term "Lender Party" or
"Lender Parties" shall, unless otherwise expressly indicated, include GECC in
its individual capacity. GECC and its affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person that may do business with or own
securities of any Loan Party or any such Subsidiary, all as if GECC was not an
Agent and without any duty to account therefor to the Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 8.05. Indemnification. (a) Each Lender Party severally agrees
to indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted
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against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse each Agent promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 9.04 (other than under Section 9.04(c)),
to the extent that such Agent is not promptly reimbursed for such costs and
expenses by the Borrower.
(b) For purposes of this Section 8.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties and (ii) the Commitments of the
respective Lender Parties at such time. The failure of any Lender Party to
reimburse any Agent promptly upon demand for its ratable share of any amount
required to be paid by the Lender Parties to such Agent as provided herein shall
not relieve any other Lender Party of its obligation hereunder to reimburse such
Agent for its ratable share of such amount, but no Lender Party shall be
responsible for the failure of any other Lender Party to reimburse such Agent
for such other Lender Party's ratable share of such amount. Without prejudice to
the survival of any other agreement of any Lender Party hereunder, the agreement
and obligations of each Lender Party contained in this Section 8.05 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Lender Parties and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent and, in the case of a
successor Collateral Agent, upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements
to the Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. If within 45 days after written notice is given of the retiring
Agent's resignation or removal under this Section 8.06 no successor Agent shall
have been appointed and shall have accepted such appointment, then on such 45th
day (i) the retiring Agent's resignation or removal shall become effective, (ii)
the retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents and (iii) the Required Lenders shall thereafter perform
all
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duties of the retiring Agent under the Loan Documents until such time, if any,
as the Required Lenders appoint a successor Agent as provided above. After any
retiring Agent's resignation or removal hereunder as Agent shall have become
effective, the provisions of this Article VIII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 8.07. Appointment of Subagents. Anything herein to the
contrary notwithstanding, the Collateral Agent may from time to time, when the
Collateral Agent deems it to be necessary, appoint one or more subagents or
collateral co-agents (each, a "Subagent") with respect to all or any part of the
Collateral. In the event that the Collateral Agent so appoints any Subagent with
respect to any Collateral, (i) the Liens on such Collateral granted pursuant to
the applicable Collateral Documents shall be deemed for purposes of this
Agreement and the other Loan Documents to have been granted to such Subagent, in
addition to the Collateral Agent, for the benefit of the Secured Parties, (ii)
such Subagent shall be automatically vested, in addition to the Collateral
Agent, with all rights, powers, privileges, interests and remedies of the
Collateral Agent under the Loan Documents with respect to such Collateral, (iii)
the provisions of this Article 8 and of Section 9.04 that refer to each Agent
shall be deemed to be references to each Agent and/or each Subagent, as the
context may require, and (iv) the term "Collateral Agent", when used herein or
in any of the applicable Collateral Documents in relation to any rights, powers,
privileges, interests and remedies of the Collateral Agent with respect to such
Collateral shall include such Subagent; provided, however, that no such Subagent
shall be authorized to take any action with respect to any such Collateral
unless and except to the extent expressly authorized in writing by the
Collateral Agent.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section
3.01, (ii) change the number of Lenders or the percentage of (x) the Commitments
or (y) the aggregate unpaid principal amount of the Advances that, in each case,
shall be required for the Lenders or any of them to take any action hereunder,
(iii) reduce or limit the obligations of any Guarantor under Section 7.01 or
release such Guarantor or otherwise limit such Guarantor's liability with
respect to the Obligations owing to the Agents and the Lender Parties, (iv)
release all or substantially all of the Collateral in any transaction or series
of related transactions or permit the creation, incurrence, assumption or
existence of any Lien on all or substantially all of the Collateral in any
transaction or series of related transactions to secure any Obligations other
than Obligations owing to the Secured Parties under the Loan Documents, or
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(v) amend Section 2.10 or this Section 9.01, and (b) no amendment, waiver or
consent shall, unless in writing and signed by the Required Lenders and each
Lender (other than any Lender that is, at such time, a Defaulting Lender) that
has a Commitment under any of the Facility if such Lender is directly affected
by such amendment, waiver or consent, (i) increase the Commitments of such
Lender or subject such Lender to any additional obligations, (ii) reduce the
principal of, or interest on, the Notes held by such Lender or any fees or other
amounts payable hereunder to such Lender or (iii) postpone any date fixed for
any payment of principal of, or interest on, the Notes held by such Lender or
any fees or other amounts payable hereunder to such Lender; and provided,
further, that no amendment, waiver or consent shall, unless in writing and
signed by an Agent in addition to the Lenders required above to take such
action, affect the rights or duties of such Agent under this Agreement or the
other Loan Documents.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered,
if to the Borrower, at its address at 0000 XX Xxxxxxx Xxxxx, Xxxx Xxxxx, XX
00000, Attention: Xxxxxxx X. Xxxxxxx; if to any Amendment Lender, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to the
Agent, at its address at General Electric Capital Corporation, 0000 Xxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 Attention: ITC Account Manager,
Telecopier No.: (000) 000-0000, Telephone No.: (000) 000-00000 with copies to:
Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, 1230 Peachtree Street, N.E., Suite 0000,
Xxxxxxxxx XX, Xxxxxxx, Xxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx, Esq.,
Telecopier No.: (000) 000-0000, Telephone No.: (000) 000-0000 or, as to any
party, at such other address as shall be designated by such party in a written
notice to the other parties. All such notices and communications shall, when
mailed, telegraphed, telecopied or telexed, be effective when deposited in the
mails, delivered to the telegraph company, transmitted by telecopier or
confirmed by telex answerback, respectively, except that notices and
communications to any Agent pursuant to Article II, III or VIII shall not be
effective until received by such Agent. Manual delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of an original executed counterpart
thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for each Agent with
respect thereto, with respect to advising such Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with
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any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of each Agent and each Lender Party in
connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent and each
Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless each Agent,
each Lender Party and each of their Affiliates and their respective officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) any claims by third parties
involving (i) the Facility, the actual or proposed use of the proceeds of the
Advances, the Loan Documents or any of the transactions contemplated thereby, or
(ii) the actual or alleged presence of Hazardous Materials on any property of
any Loan Party or any of its Subsidiaries or any Environmental Action relating
in any way to any Loan Party or any of its Subsidiaries, except to the extent
such claim, damage, loss, liability or expense results from such Indemnified
Party's gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 9.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by any Loan Party, its directors,
shareholders or creditors or an Indemnified Party or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated by
the Loan Documents are consummated. Each of the parties hereto also agrees not
to assert any claim against any other party hereto or any of their respective
Affiliates, or any of their respective officers, directors, employees, attorneys
and agents, on any theory of liability, for special, indirect, consequential or
punitive damages arising out of or otherwise relating to the Facility, the
actual or proposed use of the proceeds of the Advances, the Loan Documents or
any of the transactions contemplated by the Loan Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.05, 2.08(b)(i) or 2.09(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or if the Borrower fails to make any payment or prepayment of an
Advance for which a notice of prepayment has been given or that is otherwise
required to be made, whether pursuant to Section 2.03, 2.05 or 6.01 or
otherwise, the Borrower shall, upon demand by such Lender Party (with a copy of
such demand to the Administrative Agent), pay to the Administrative Agent for
the account of such Lender Party any amounts required to compensate such Lender
Party for any additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion or such failure to pay or prepay, as
the case may be, including, without limitation, any loss (including loss of any
interest that, but for such failure, such Lender would have earned with respect
to such principal amount, reduced if such Lender
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Party is able to redeposit or reinvest such principal amount, by interest earned
by such Lender as a result of such redeposit or reinvestment), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance. For the purpose
of calculating amounts payable to any Lender Party under this Section 9.04(c),
each Lender Party shall be deemed to have actually funded its Eurodollar Rate
Advance through the purchase of a deposit-bearing interest at the Eurodollar
Rate in an amount equal to the amount of that Eurodollar Rate Advance and having
a maturity comparable to the applicable Interest Period; provided, that each
Lender Party may fund each Eurodollar Rate Advance in any manner it deems
appropriate, and the foregoing assumption shall be utilized only for the
calculation of amounts payable under this Section 9.04(c).
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.09 and 2.10 and this Section
9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower, BTI and
the Subsidiaries of the Borrower and BTI against any and all of the Obligations
of the Borrower now or hereafter existing under the Loan Documents, irrespective
of whether such Agent or such Lender Party shall have made any demand under this
Agreement or such Note or Notes and although such obligations may be unmatured.
Each Agent and each Lender Party agrees promptly to notify the Borrower after
any such set-off and application; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Agent and each Lender Party and their respective Affiliates under
this Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Agent, such Lender Party and
their respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
when it has been executed by the Borrower and each Agent, and the Administrative
Agent has been notified by the Required Lenders that each such Required Lender
has executed it, and thereafter this Agreement shall be binding upon and inure
to the benefit of the Borrower, each Agent and each Lender Party and their
respective successors and assigns, except that the Borrower shall not
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have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender,
an Affiliate of any Lender or an Approved Fund of any Lender or an assignment of
all of a Lender's rights and obligations under this Agreement, the aggregate
amount of the Commitments being assigned to such Eligible Assignee pursuant to
such assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000 (or such
lesser amount as shall be approved by the Administrative Agent and, so long as
no Event of Default shall have occurred and be continuing at the time of
effectiveness of such assignment, the Borrower, such approval, in the case of
the Borrower, not to be unreasonably withheld), (ii) each such assignment shall
be to an Eligible Assignee, and (iii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment. No processing and recordation fee shall be
due.
(b) Upon such execution, delivery, consent, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
and (ii) the Lender assignor thereunder shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.09,
2.10 and 9.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such
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Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any Agent, such assigning Lender Party or any other Lender Party
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender, as the case may be.
(d) The Administrative Agent shall maintain at its address referred to
in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it under each Facility pursuant
to such Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1 or A-2 hereto, as the case may be.
(f) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agents and the other Lender
Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
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principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
(g) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Manual delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of an original
executed counterpart of this Agreement.
SECTION 9.09. Confidentiality. Neither any Agent nor any Lender Party
shall disclose any Confidential Information to any Person without the consent of
the Borrower, other than (a) to such Agent's or such Lender Party's Affiliates
and their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, Federal or foreign authority or examiner
regulating such Lender Party, (d) to any rating agency when required by it,
provided, that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the
Loan Parties received by it from such Lender Party and (e) to any direct or
indirect contractual counterparty in swap agreements or such contractual
counterparty's professional advisor, provided, that prior to such disclosure,
such contractual counterparty or professional advisor to such contractual
counterparty shall undertake to preserve the confidentiality of any Confidential
Information relating to the Loan Parties received by it from such Agent or
Lender Party.
SECTION 9.10. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrower's
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
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SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York County, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction. Notwithstanding the foregoing, no party that is a
sovereign entity shall deemed to have waived any immunity against pre-judgment
attachment of any of its assets or properties.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection that
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.12. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.13. Waiver of Jury Trial. Each of the Guarantors, the
Borrower, the Agents and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of any Agent or any Lender Party in the
negotiation, administration, performance or enforcement thereof.
SECTION 9.14. Waiver and Consent. The Lender Parties hereby
irrevocably (i) waive any and all Defaults and Events of Default that may exist
and be continuing as of the Amendment Effective Date under and as defined in the
Original BTI Credit Agreement and any other Loan Document as provided and
defined in the Original BTI Credit Agreement and irrevocably waive any and all
remedies and other rights they may have under the Original BTI Credit Agreement,
any other Loan Document as provided and defined in the Original BTI Credit
Agreement, this Agreement or any other Loan Document or otherwise in respect of
such Defaults and Events of Defaults, (ii) agree and consent to the consummation
of each and every one of the Merger Transactions notwithstanding that the
consummation of any such Merger Transaction may, in the absence of this Section
9.14, be deemed to violate or breach, or conflict with, this Agreement or any
other Loan Document or to constitute a Default or an Event of Default under the
Original BTI Credit Agreement, any other Loan Document as provided and defined
in the Original BTI Credit Agreement, this Agreement or any other Loan Document
and (iii) agree and covenant to the consummation of the MEGAPOP Transactions
notwithstanding
101
that the consummation of the MEGAPOP Transactions may, in the absence of this
Section 9.14, be deemed to violate or breach, or conflict with, this Agreement
or any other Loan Document or to constitute a Default or an Event of Default
under this Agreement or any other Loan Document. Notwithstanding any other
provision of this Agreement to the contrary, once this Agreement becomes
effective, the provisions of this Section 9.14, as they apply to the Original
BTI Credit Agreement and any other such Loan Document, shall be deemed to have
become effective immediately prior to the consummation of the Merger
Transactions.
SECTION 9.15. Release of the Agent and the Lenders. Effective as of
the date hereof, the Borrower and the Subsidiary Guarantors hereby release each
Lender and each such Lender's direct and indirect stockholders and other
affiliates, officers, employees, directors and agents (collectively, the
"Releasees") from any and all claims, demands, liabilities, responsibilities,
disputes, causes of action (whether at law or in equity) and obligations of
every nature whatsoever, whether liquidated or unliquidated, known or unknown,
matured or unmatured, fixed or contingent that any of the Borrower or the
Subsidiary Guarantors may have against any Lender, arising from or relating to
any action or inactions of any Releasee on or prior to the date hereof with
respect to this Agreement, any other Loan Document, the Obligations, the
Collateral or any other property securing the Obligations. For purposes of the
release contained in this paragraph, the term "Borrower" shall also include the
Borrower's successors and assigns, including, without limitation, any trustee,
receiver or other representative acting on behalf of the Borrower.
SECTION 9.16. FS Multimedia, Inc. FS Multimedia, Inc. is expected to
be merged into a Subsidiary of the Parent shortly after the Amendment Effective
Date. Consequently, FS Multimedia, Inc is executing this Agreement for the sole
purpose of agreeing to be bound by the terms of Article VII as a Guarantor until
such time as such merger has consummated. In the event such merger is
consummated within 15 Business Days after the Amendment Effective Date, FS
Multimedia, Inc., effective as of the consummation of such merger, shall no
longer be bound by, or subject to, Article VII or any term or provision of any
Loan Document. In the event such merger is not consummated within 15 Business
Days after the Amendment Effective Date, then FS Multimedia, Inc. shall execute
and deliver all Loan Documents, and perform all such other actions, as all other
Guarantors are obligated to execute and deliver or perform in connection with
the consummation of the Transactions.
102
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
PARENT:
ITC/\DELTACOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
BORROWER:
INTERSTATE FIBERNET, INC.
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
SUBSIDIARY GUARANTORS:
ITC/\DELTACOM COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
DELTACOM INFORMATION SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
BUSINESS TELECOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
BTI TELECOM CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
BUSINESS TELECOM OF VIRGINIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
FS MULTIMEDIA, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President/Chief Financial
Officer
ADMINISTRATIVE AGENT
AND COLLATERAL AGENT:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Duly Authorized Signatory
BANC OF AMERICA STRATEGIC SOLUTIONS, INC.
By: /s/ Xxxx X. Xxxxxxx III
--------------------------------------------
Name: Xxxx X. Xxxxxxx III
Title: Managing Director
EXPORT DEVELOPMENT CANADA
(f/k/a Export Development Corporation)
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Loan Asset Manager
By: /s/ Xxx Xxxxxx
--------------------------------------------
Name: Xxx Xxxxxx
Title: Loan Asset Manager
SCHEDULE I
APPLICABLE LENDING OFFICES
==================================================================================================================
Amount of
Advances on
Name of Lender Lending Office Wiring Instructions Closing Date
==================================================================================================================
General Electric Capital 0000 Xxxxxxxx Xxxxxxx GECC/CAF Depository $37,560,872.68
Corporation Xxxxx 000 XXX#: 000-000-000
Xxxxxxxxxx, XX 00000 Bankers Trust
Attention: ITC, Account Manager 00 Xxxxxx Xxxxxx, 0xx Xxxxx
Telecopier No.: (000) 000-0000 Xxxxxx Xxxx, XX 00000
Telephone No.: (000) 000-0000 Acct#: 00-000-000
Attention: Xxxx Birmingham
Ref: CFN5299 - ITCDELTACOM2
------------------------------------------------------------------------------------------------------------------
Banc Of America Strategic Banc of America Bank of America, N.A. Charlotte, NC $12,102,947.53
Solutions, Inc. Strategic Solutions, Inc. ABA#000000000
000 Xxxx Xxxxxx, 00xx Xxxxx Acct Name: Credit Services
Xxxxxx, XX 00000 Acct #: 1366212250600
Ph. (000) 000-0000 Ref: ITC
Fax (000) 000-0000 Attn: Xxxxx X. Xxxxxxx
------------------------------------------------------------------------------------------------------------------
Export Development Canada 000 X'Xxxxxx Xxxxxx CitiBank $ 6,051,473.79
Xxxxxx, Xxxxxxx XXX#000000000
Xxxxxx X0X 0X0 Acct#36236357
Attention: Xxxxx Xxxxxxxxx Ref: ITC
Telecopier No.: (000) 000-0000 Swift Code XXXXXX00
Telephone No.: (000) 000-0000
------------------------------------------------------------------------------------------------------------------
$ 55,715,294
==================================================================================================================
