EXHIBIT 10.11
AMENDED AND RESTATED
LOAN AGREEMENT
AMONG
TCG NEW YORK, INC.;
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR AS BANKS ON THE
SIGNATURE PAGES HEREOF (COLLECTIVELY, THE "BANKS");
CHASE SECURITIES, INC. (FORMERLY KNOWN AS CHEMICAL SECURITIES,
INC.) AND TORONTO-DOMINION SECURITIES, (USA) INC.,
AS CO-SYNDICATION AGENTS AND CO-ARRANGERS HEREUNDER
(COLLECTIVELY, THE "CO-SYNDICATION AGENTS");
TORONTO DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT
FOR THE BANKS (THE "ADMINISTRATIVE AGENT"); AND
THE CHASE MANHATTAN BANK (FORMERLY CHEMICAL BANK),
AS DOCUMENTATION AGENT FOR THE BANKS (THE "DOCUMENTATION AGENT")
INDEX
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Page
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ARTICLE 1 Definitions..................................... 1
ARTICLE 2 Loans........................................... 22
Section 2.1 The Loans. 22
Section 2.2 Manner of Borrowing and Disbursement............ 22
Section 2.3 Interest........................................ 25
Section 2.4 Fees 27
Section 2.5 Mandatory Commitment Reductions................. 27
Section 2.6 Voluntary Commitment Reductions................. 28
Section 2.7 Payments and Repayments......................... 29
Section 2.8 Notes; Loan Accounts............................ 30
Section 2.9 Manner of Payment............................... 30
Section 2.10 Reimbursement................................... 32
Section 2.11 Pro Rata Treatment.............................. 33
Section 2.12 Capital Adequacy................................ 33
Section 2.13 Bank Tax Forms.................................. 34
Section 2.14 Incremental Facility Advances................... 35
ARTICLE 3 Conditions Precedent............................ 36
Section 3.1 Conditions Precedent to Effectiveness of
Agreement.................................... 36
Section 3.2 Conditions Precedent to Each Advance............ 38
ARTICLE 4 Representations and Warranties.................. 39
Section 4.1 Representations and Warranties.................. 39
Section 4.2 Survival of Representations and Warranties,
etc.......................................... 47
ARTICLE 5 General Covenants............................... 47
Section 5.1 Preservation of Existence and Similar Matters... 47
Section 5.2 Business; Compliance with Applicable Law........ 47
Section 5.3 Maintenance of Properties....................... 48
Section 5.4 Accounting Methods and Financial Records........ 48
Section 5.5 Insurance....................................... 48
Section 5.6 Payment of Taxes and Claims..................... 49
Section 5.7 Compliance with ERISA........................... 49
Section 5.8 Visits and Inspections.......................... 51
Section 5.9 Payment of Indebtedness; Loans.................. 52
Section 5.10 Use of Proceeds................................. 52
Section 5.11 Real Estate 52
Section 5.12 Indemnity....................................... 53
Section 5.13 Covenants Regarding Formation of Restricted
Subsidiaries and Acquisitions; Partnership,
Restricted Subsidiaries...................... 54
Section 5.14 Payment of Wages................................ 54
Section 5.15 Further Assurances.............................. 55
ARTICLE 6 Information Covenants........................... 55
Section 6.1 Quarterly Financial Statements and
Information.................................. 55
Section 6.2 Annual Financial Statements and Information..... 56
Section 6.3 Performance Certificates........................ 56
Section 6.4 Copies of Other Reports......................... 57
Section 6.5 Notice of Litigation and Other Matters.......... 57
ARTICLE 7 Negative Covenants.............................. 59
Section 7.1 Indebtedness for Money Borrowed of the
Borrower and its Subsidiaries................ 59
Section 7.2 Limitation on Liens............................. 60
Section 7.3 Amendment and Waiver............................ 60
Section 7.4 Liquidation, Merger, or Disposition of Assets... 60
Section 7.5 Limitation on Guaranties........................ 61
Section 7.6 Investments and Acquisitions.................... 61
Section 7.7 Restricted Payments and Purchases............... 62
Section 7.8 Fixed Charge Coverage Ratio..................... 63
Section 7.9 Leverage Ratio.................................. 63
Section 7.10 Annualized Operating Cash Flow to Total Cash
Interest Expense............................. 63
Section 7.11 Affiliate Transactions.......................... 64
Section 7.12 Real Estate 64
Section 7.13 ERISA Liabilities............................... 64
Section 7.14 Limitation on Upstream Dividends by
Restricted Subsidiaries...................... 64
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ARTICLE 8 Default 65
Section 8.1 Events of Default............................... 65
Section 8.2 Remedies........................................ 68
Section 8.3 Payments Subsequent to Declaration of Event
of Default................................... 70
ARTICLE 9 The Agents...................................... 71
Section 9.1 Appointment and Authorization................... 71
Section 9.2 Interest Holders................................ 71
Section 9.3 Consultation with Counsel....................... 71
Section 9.4 Documents....................................... 72
Section 9.5 Administrative Agent, the Documentation Agent
and Affiliates............................... 72
Section 9.6 Responsibility of the Administrative Agent...... 72
Section 9.7 Action by the Administrative Agent.............. 73
Section 9.8 Notice of Default or Event of Default........... 73
Section 9.9 Responsibility Disclaimed....................... 74
Section 9.10 Indemnification................................. 74
Section 9.11 Credit Decision................................. 75
Section 9.12 Successor Administrative Agent and
Documentation Agent.......................... 75
Section 9.13 Delegation of Duties............................ 76
ARTICLE 10 Change in Circumstances Affecting LIBOR Advances 76
Section 10.1 LIBOR Basis Determination Inadequate............ 76
Section 10.2 Illegality 77
Section 10.3 Increased Costs................................. 77
Section 10.4 Effect On Other Advances........................ 79
Section 10.5 Claims for Increased Costs and Taxes............ 79
ARTICLE 11 Miscellaneous................................... 80
Section 11.1 Notices......................................... 80
Section 11.2 Expenses........................................ 82
Section 11.3 Waivers......................................... 83
Section 11.4 Set-Off......................................... 83
Section 11.5 Assignment 84
Section 11.6 Accounting Principles........................... 87
Section 11.7 Counterparts.................................... 87
Section 11.8 Governing Law................................... 87
Section 11.9 Severability.................................... 87
Section 11.10 Interest 87
Section 11.11 Table of Contents and Headings.................. 88
Section 11.12 Amendment and Waiver............................ 88
Section 11.13 Entire Agreement 89
Section 11.14 Other Relationships............................. 89
Section 11.15 Directly or Indirectly.......................... 89
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Section 11.16 Reliance on and Survival of Various
Provisions................................... 89
Section 11.17 Senior Debt 89
Section 11.18 Obligations Several............................. 90
Section 11.19 Confidentiality 90
ARTICLE 12 Waiver of Jury Trial............................ 90
Section 12.1 Waiver of Jury Trial............................ 90
EXHIBITS
Exhibit A --Form of Assignment of Rights by Partner
Exhibit B --Form of Certificate of Financial Condition
Exhibit C --Form of Note
Exhibit D --Form of Notice of Incremental Facility
Commitment
Exhibit E --Form of Request for Advance
Exhibit F --Form of Subsidiary Pledge Agreement
Exhibit G --Form of Incremental Facility Note
Exhibit H --Form of Acknowledgement of Guarantors
Exhibit I --Form of Opinion of Regulatory Counsel to the
Borrower
Exhibit J --Form of Opinion of General Counsel to the
Borrower
Exhibit K --Form of Opinion of In-House Counsel
Exhibit L --Form of Borrower's Loan Certificate
Exhibit M --Form of Restricted Subsidiary Loan Certificate
Exhibit N --Form of Subsidiary Guaranty
Exhibit O --Form of Borrower's Pledge Agreement
Exhibit P --Form of Performance Certificate
Exhibit Q --Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 -- Licenses
Schedule 2 -- Trademarks
Schedule 3 -- Exceptions to Due Authorizations
Schedule 4 -- Subsidiaries
Schedule 5 -- Litigation
Schedule 6 -- Affiliate Transactions
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AMENDED AND RESTATED LOAN AGREEMENT
This Amended and Restated Loan Agreement (the "Agreement"), made as of this
28th day of July, 1997, by and among TCG NEW YORK, INC., a Delaware corporation,
the financial institutions party hereto as Banks (together with such other
financial institutions as may hereafter become Banks hereunder, the "Banks"),
TORONTO DOMINION (TEXAS), INC., as Administrative Agent (the "Administrative
Agent"), and THE CHASE MANHATTAN BANK (formerly Chemical Bank), as Documentation
Agent (the "Documentation Agent").
ARTICLE 1
Definitions
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Section 1.1 Defined Terms. The following terms when used in this Agreement
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shall have the following meanings:
"Acquisition" shall mean (whether by purchase, lease, exchange, issuance of
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stock or other equity or debt securities, merger, reorganization or any other
method) (i) any acquisition by the Borrower or any of its Restricted
Subsidiaries of any other Person, which Person shall then become consolidated
with the Borrower or any such Restricted Subsidiary in accordance with GAAP or
(ii) any acquisition by the Borrower or any of its Restricted Subsidiaries of
all or any substantial part of the assets of any other Person.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc. in its
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capacity as Administrative Agent for the Banks or any successor Administrative
Agent appointed pursuant to Section 9.12 of this Agreement.
"Administrative Agent's Office" shall mean the office of the Administrative
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Agent located at 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, or such
other office as may be designated pursuant to the provisions of Section 11.1 of
this Agreement.
"Advance" shall mean amounts advanced by the Banks to the Borrower pursuant to
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Article 2 hereof on the occasion of any borrowing; and "Advances" shall mean
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more than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person directly or
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indirectly controlling, controlled by, or under common control with, such first
Person. For purposes of this definition, "control" when used with respect to
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any Person includes, without limitation, the direct or indirect beneficial
ownership of more than ten percent (10%) of the voting securities or voting
equity of such Person or the power to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise. TCG Partners, a New York general partnership, and each local
partnership in which TCGI, TCG Partners or any of their Subsidiaries has a
partnership interest and which is managed by TCGI or TCG Partners pursuant to a
management services agreement shall be deemed to be Affiliates of the Borrower
and the Restricted Subsidiaries.
"Agreement" shall mean this Amended and Restated Loan Agreement, as amended,
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supplemented, restated or otherwise modified from time to time.
"Agreement Date" shall mean July 28, 1997.
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"Annualized Operating Cash Flow" shall mean the product of (a) Operating Cash
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Flow for the two (2) fiscal quarters immediately preceding the calculation date,
times (b) two (2).
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"Applicable Law" shall mean, in respect of any Person, all provisions of
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constitutions, laws, statutes, rules, regulations, codes and orders of
governmental bodies or regulatory agencies applicable to such Person, including,
without limiting the foregoing, the Material Licenses, the Communications Act
and all Environmental Laws, and all orders, decisions, judgments and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it or its properties or assets are bound.
"Applicable Margin" shall mean the interest rate margin applicable to Base
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Rate Advances and LIBOR Advances, as the case may be, in each case determined in
accordance with Section 2.3(f) hereof.
"Assignment of Intercompany Indebtedness" shall mean that certain Assignment
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of Intercompany Indebtedness dated as of December 19, 1995 between the Borrower
and the Administrative Agent, pursuant to which the Borrower has assigned to the
Administrative Agent, on behalf of the Banks, all Indebtedness for Money
Borrowed owed to it by its Affiliates.
"Assignment of Rights by Partner" shall mean, collectively, any Assignment of
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Rights by Partner between the Borrower, or any Restricted Subsidiary which holds
partnership interests in a Restricted Subsidiary, on the one hand, and the
Administrative Agent, on the other hand, each substantially in the form of
Exhibit A attached hereto.
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"Authorized Signatory" shall mean such senior personnel of a Person as may be
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duly authorized and designated in writing by such Person to execute documents,
agreements and instruments on behalf of such Person.
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"Banks" shall mean the Persons whose names appear as "Banks" on the signature
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pages hereof and any other Person which becomes a "Bank" hereunder after the
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Agreement Date; and "Bank" shall mean any one of the foregoing Banks.
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"Base Rate" shall mean, as of any date, a fluctuating interest rate per annum
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equal to the higher of (a) the Prime Rate, and (b) the sum of (i) the Federal
Funds Rate, plus (ii) one-half of one percent (1/2%). The Base Rate shall be
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adjusted automatically as of the opening of business on the effective date of
each change in the Prime Rate or the Federal Funds Rate, as the case may be.
Interest on Base Rate Advances shall be subject to adjustment as provided in
Section 2.3(f).
"Base Rate Advance" shall mean an Advance which the Borrower requests to be
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made as a Base Rate Advance or is reborrowed as a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $500,000, and in an integral multiple of $250,000;
except for a Base Rate Advance which is an amount equal to the unused
Commitment, which Advance may be in such amount.
"Base Rate Basis" shall mean a simple per annum interest rate equal to the sum
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of (i) the Base Rate and (ii) the Applicable Margin. The Base Rate Basis shall
be adjusted automatically as of the opening of business on the effective date of
each change in the Base Rate to account for such change, and shall also be
changed as and when provided in Section 2.3(f) to reflect changes in the
Applicable Margin.
"Borrower" shall mean TCG New York, Inc., a Delaware corporation.
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"Borrower's Pledge Agreement" shall mean that certain Borrower's Pledge
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Agreement dated as of December 19, 1995 between the Borrower and the
Administrative Agent, pursuant to which the Borrower has pledged to the
Administrative Agent all of the Borrower's stock ownership in the Restricted
Subsidiaries.
"Business Day" shall mean a day on which banks and foreign exchange markets
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are open for the transaction of business required for this Agreement in Houston,
Texas; New York, New York and London, England, as relevant to the determination
to be made or the action to be taken.
"Capital Expenditures" shall mean, in respect of any Person, expenditures for
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the purchase of assets of long-term use which would be required to be
capitalized on the balance sheet of such Person in accordance with GAAP.
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"Capital Stock" shall mean, as applied to any Person, any capital stock of
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such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any obligation of a
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Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"Certificate of Financial Condition" shall mean a certificate, substantially
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in the form of Exhibit B attached hereto, signed by the chief financial officer
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of the Borrower, together with any schedules, exhibits or annexes appended
thereto.
"Change of Control" shall mean, as applied to the Borrower, any change in the
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ownership of the Capital Stock of the Borrower that results in less than fifty
and one-tenth of one percent (50.1%) of all voting rights (after giving effect
to any shareholder's agreement or voting trust agreements and assuming that the
voting rights applicable to any stock subject to any Lien are held by the holder
of such Lien other than a Lien in favor of the Agents and the Banks) with
respect to the Capital Stock of the Borrower (including, without limitation,
warrants, options, conversion rights, voting rights and calls or claims of any
character with respect thereto, to the extent exercisable prior to repayment in
full of the Obligations) being owned directly or indirectly by (a) any one or
more of the Shareholders, (b) any of the Shareholders and Sprint or (c) a Person
owned by Sprint and any one or more of the Shareholders.
"COBRA" shall mean Title X of the Consolidated Omnibus Budget Reconciliation
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Act of 1985 and any amendments thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral" shall mean any property of any kind constituting collateral for
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the Obligations under any of the Security Documents.
"Comcast" shall mean Comcast Corporation, a Pennsylvania corporation.
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"Commitment" shall mean the several obligations of the Banks to fund their
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respective portion of the Loans to the Borrower in accordance with their
respective Commitment Ratios in the aggregate sum of $400,000,000 pursuant to
the terms hereof, as
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such obligations may be reduced from time to time pursuant to the terms hereof.
"Commitment Ratios" shall mean the percentages in which the Banks are
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severally bound to fund their respective portions of Advances to the Borrower
under the Commitment, which are set forth below (together with dollar amounts)
as of the Agreement Date:
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DOLLAR
BANK PERCENTAGE COMMITMENT
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Toronto Dominion (Texas), Inc. 6.250000000% $25,000,000.00
The Chase Manhattan Bank 6.250000000% $25,000,000.00
(formerly Chemical Bank)
Bank of America National Trust 5.000000000% $20,000,000.00
and Savings Association
Bank of Hawaii 3.750000000% $15,000,000.00
Bank of Montreal Chicago Branch 5.000000000% $20,000,000.00
The Bank of New York Company, 5.000000000% $20,000,000.00
Inc.
The Bank of Nova Scotia 5.000000000% $20,000,000.00
Bank of Tokyo-Mitsubishi Trust 5.000000000% $20,000,000.00
Company
CoreStates Bank, N.A. 5.000000000% $20,000,000.00
Credit Lyonnais New York Branch 5.000000000% $20,000,000.00
Fleet National Bank 5.000000000% $20,000,000.00
Xxxxxxx Xxxxx Credit 5.000000000% $20,000,000.00
Partners X.X.
Xxxxxx Commercial Paper Inc. 5.000000000% $20,000,000.00
The Long-Term Credit Bank 5.000000000% $20,000,000.00
of Japan, Limited
Mellon Bank, N.A. 5.000000000% $20,000,000.00
Xxxxxx Guaranty Trust Company 3.750000000% $15,000,000.00
of New York
NationsBank of Texas, N.A. 5.000000000% $20,000,000.00
PNC Bank, National Association 5.000000000% $20,000,000.00
Royal Bank of Canada 5.000000000% $20,000,000.00
Societe Generale, 5.000000000% $20,000,000.00
New York Branch
TOTAL 100.000000000% $ 400,000,000
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"Communications Act" shall mean the Communications Act of 1934, and
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any similar or successor federal statute, and the rules and regulations of the
FCC thereunder, all as the same may be in effect from time to time.
"Continental" shall mean Continental Cablevision, Inc., a Delaware
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corporation.
"Cox" shall mean Xxx Communications, Inc., a Delaware corporation.
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"Default" shall mean any Event of Default, and any of the events
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specified in Section 8.1, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to
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the sum of the otherwise applicable Interest Rate Basis plus two percent (2%),
or if no Interest Rate Basis is otherwise applicable, a simple per annum
interest rate equal to the sum of the Base Rate Basis plus two percent (2%).
"Documentation Agent" shall mean The Chase Manhattan Bank (formerly
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Chemical Bank) in its capacity as Documentation Agent or any successor
Documentation Agent appointed pursuant to Section 9.12 of this Agreement.
"Employee Pension Plan" shall mean any Plan which (a) is maintained by
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the Borrower or any ERISA Affiliate and (b) is subject to Part 3 of Title I of
ERISA.
"Environmental Laws" shall mean all applicable federal, state or local
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laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements to which the Borrower or any Restricted Subsidiary is a party,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder relating to the pollution or protection of the environment,
including, without limitation, those relating to releases, discharges,
emissions, spills, leaching, or disposals to air, water, land or ground water,
to the withdrawal or use of ground water, to the use, handling or disposal of
polychlorinated biphenyls, asbestos or urea formaldehyde, to the treatment,
storage, disposal or management of hazardous substances (including, without
limitation, petroleum, crude oil or any fraction thereof, or other
hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or
other controlled, prohibited, or regulated substances, including, without
limitation, any such provisions under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980,
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as amended (42 U.S.C. (S) 9601 et seq.), or the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. (S) 6901 et seq.) or any
environmental laws relating to public health and safety.
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
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Affiliate of the Borrower, that is a member of any group of organizations
(within the meaning of Code Sections 414(b), 414(c), 414(m), or 414(o)) of which
the Borrower is a member.
"Event of Default" shall mean any of the events specified in Section
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8.1 hereof, provided that any requirement for notice or lapse of time has been
satisfied.
"FCC" shall mean the Federal Communications Commission, or any other
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similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average
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of the rates on overnight federal funds transactions with the 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 which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fixed Charge Coverage Ratio" shall mean, for every four (4) calendar
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quarter period, the ratio of (a) the sum of (i) Annualized Operating Cash Flow
as of the last day of such period, (ii) the arithmetic average of the daily
unborrowed portion of the Commitment (together with the Incremental Facility
Commitment to the extent such commitment is in effect hereunder) available for
borrowing during such period (after giving effect to the permitted Leverage
Ratio), and (iii) (A) the arithmetic average of the daily cash on hand for the
Borrower and the Restricted Subsidiaries, for such period less (B) the lesser of
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(1) $1,000,000 and (2) the amount in clause (A) hereof; to (b) the sum of (i)
Total Cash Interest Expense during such period, (ii) Scheduled Principal
Payments during such period, (iii) all scheduled payments by the Borrower and
the Restricted Subsidiaries, of principal on Indebtedness for Money Borrowed
(other than the Loans) for such period, (iv) (A) aggregate Capital Expenditures
made by the Borrower and the Restricted
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Subsidiaries, during such period (other than from the proceeds of casualty
insurance) less (B) all cash payments of capital contributions made directly or
indirectly by TCGI or the shareholders of TCGI to the Borrower and the
Restricted Subsidiaries, during such period, and (v) the amount of all
Restricted Payments made pursuant to Section 7.7 hereof during such period.
"GAAP" shall mean, as in effect from time to time, generally accepted
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accounting principles in the United States, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean
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and include (a) a guaranty, direct or indirect, in any manner, of all or any
part of such obligation, and (b) any agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements.
"Incremental Facility Advance" shall mean an Advance made by any Bank
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under any Incremental Facility Commitment pursuant to Section 2.14 hereof.
"Incremental Facility Commitment" shall mean the commitment of any
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Bank or Banks to make advances to the Borrower in accordance with Section 2.14
hereof. The Borrower may obtain Incremental Facility Commitments from more than
one Bank, which commitments shall be the several obligations of each such Bank.
"Incremental Facility Commitment Ratios" shall mean the percentages in
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which the applicable Banks are severally bound to fund their respective portions
of Advances to the Borrower under the Incremental Facility Commitment which are
set forth in the Notice of Incremental Facility Commitment.
"Incremental Facility Notes" shall mean those certain Incremental
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Facility Notes described in Section 2.14 hereof.
"Indebtedness" shall mean, with respect to any Person, and without
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duplication, (a) all items, except items of shareholders' and partners' equity
or capital stock or surplus or general contingency or deferred tax liabilities,
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet of such Person, including,
without limitation, to the extent of the higher of the book value or fair market
value of the property or asset securing such obligation (if less than the amount
of such obligation),
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secured non-recourse obligations of such Person, (b) all direct or indirect
obligations of any other Person secured by any Lien to which any property or
asset owned by such Person is subject, but only to the extent of the higher of
the fair market value or the book value of the property or asset subject to such
Lien (if less than the amount of such obligation) if the obligation secured
thereby shall not have been assumed, (c) to the extent not otherwise included,
all Capitalized Lease Obligations of such Person and all obligations of such
Person with respect to leases constituting part of a sale and lease-back
arrangement to the extent such lease is considered a Capitalized Lease
Obligation in accordance with GAAP, (d) all reimbursement obligations with
respect to outstanding letters of credit, (e) to the extent not otherwise
included, all obligations subject to Guaranties of such Person or its
Subsidiaries, and (f) all obligations of such Person under Interest Hedge
Agreements.
"Indebtedness for Money Borrowed" shall mean, with respect to any
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Person, Indebtedness for money borrowed and Indebtedness represented by notes
payable and drafts accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar instruments, all
Indebtedness upon which interest charges are customarily paid, all Capitalized
Lease Obligations, all reimbursement obligations with respect to outstanding
letters of credit, all Indebtedness issued or assumed as full or partial payment
for property or services (other than trade payables arising in the ordinary
course of business, but only if and so long as such accounts are payable on
customary trade terms), whether or not any such notes, drafts, obligations or
Indebtedness represent Indebtedness for money borrowed, and, without
duplication, Guaranties of any of the foregoing. For purposes of this
definition, interest which is accrued but not paid on the scheduled due date for
such interest shall be deemed Indebtedness for Money Borrowed.
"Indemnitee" shall have the meaning ascribed thereto in Section
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5.12 hereof.
"Interest Hedge Agreements" shall mean the obligations of any Person
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pursuant to (a) any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount or (b) interest rate swaps, caps, floors, collars and similar
agreements.
"Interest Period" shall mean in connection with any LIBOR Advance, the
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term of such Advance selected by the Borrower or otherwise determined in
accordance with this Agreement.
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Notwithstanding the foregoing, however, (i) any applicable Interest Period which
would otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day unless, such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any applicable Interest Period which begins on a
day for which there is no numerically corresponding day in the calendar month
during which such Interest Period is to end shall (subject to clause (i) above)
end on the last day of such calendar month, and (iii) the Borrower shall not
select an Interest Period which extends beyond the Maturity Date or such earlier
date as would interfere with the Borrower's repayment obligations under Section
2.7 hereof. Interest shall be due and payable with respect to any Advance as
provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR
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Basis, as appropriate.
"known to the Borrower" or "to the knowledge of the Borrower" shall
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mean known by or reasonably should have been known by the chief executive
officer, the chief financial officer, the general counsel, or any senior vice
president of the Borrower.
"Leverage Ratio" shall mean, as of any date, the ratio of (a) the
--------------
Total Debt on such date, to (b) Annualized Operating Cash Flow for the calendar
quarter end being tested or the most recently completed calendar quarter, as the
case may be.
"LIBOR" shall mean, for any Interest Period, the interest rate per
-----
annum equal to the offered rate for deposits in United States Dollars for an
amount approximately equal to the principal amount of, and for a length of time
approximately equal to the Interest Period for, the LIBOR Advance sought by the
Borrower, which rate appears on the Xxxxxx'x Screen LIBO Page (or such other
page as may replace that page in that service) at approximately 11:00 a.m.
(London time) two (2) Business Days before the first day of such Interest
Period; provided, that (i) if more than one such offered rate appears on the
--------
Xxxxxx'x Screen, LIBOR shall be the arithmetic average (rounded upward to the
nearest one-sixteenth (1/16) of one percent (1%)) of such offered rates, or (ii)
if the Xxxxxx'x Screen is not available, LIBOR shall be the average offered to
the Administrative Agent (or an affiliate thereof) by two (2) leading banks
(rounded upward to the nearest one-sixteenth (1/16) of one percent (1%)) of the
interest rates per annum at which deposits in United States Dollars for such
Interest Period are offered to the Administrative Agent in the London eurodollar
interbank borrowing market at approximately 11:00 a.m. (London time) two (2)
Business Days before the first day of such Interest Period, in an amount
-11-
approximately equal to the principal amount of, and for a length of time
approximately equal to the Interest Period for, the LIBOR Advance sought by the
Borrower.
"LIBOR Advance" shall mean an Advance which the Borrower requests to
-------------
be made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $500,000 and in an integral multiple of $250,000,
except for a LIBOR Advance which is in an amount equal to the unused amount of
the Commitment, which Advance may be in such amount.
"LIBOR Basis" shall mean a simple per annum interest rate equal to the
-----------
sum of (a) the quotient of (i) LIBOR divided by (ii) one minus the LIBOR Reserve
Percentage, stated as a decimal, plus (b) the Applicable Margin. The LIBOR
Basis shall be rounded upward to the nearest one-hundredth of one percent
(1/100%) and shall apply to Interest Periods of one (1), two (2), three (3), and
six (6) months, and, subject to the second to the last sentence of this
definition, nine (9) and twelve (12) months, and, once determined, shall be
subject to Article 10 hereof and shall remain unchanged during the applicable
Interest Period. The Borrower may not select an Interest Period for a LIBOR
Advance in excess of six (6) months unless the Administrative Agent has notified
the Borrower that each of the Banks has consented to such Interest Period.
Interest on LIBOR Advances shall also be subject to adjustment as provided in
Section 2.3(f) hereof.
"LIBOR Reserve Percentage" shall mean the percentage which is in
------------------------
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the actual reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D).
"Licenses" shall mean any telephone, microwave, personal
--------
communications or other license, authorization, certificate of compliance,
franchise, approval or permit, granted or issued to the Borrower or a Restricted
Subsidiary by a government agency or authority which enables any of the
Restricted Subsidiaries to engage in its existing telecommunications business,
including operating as a competitive access provider and investing in other
Persons who operate as competitive access providers, all of which Licenses are
listed as of the Agreement Date on Schedule 1 hereto.
----------
"Lien" shall mean, with respect to any property, any mortgage, lien,
----
pledge, assignment, charge, security interest, title retention agreement, levy,
execution, seizure, attachment, garnishment or other encumbrance of any kind in
respect of such
-12-
property, whether created by statute, contract, the common law or otherwise, and
whether or not xxxxxx, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Incremental
--------------
Facility Notes, the Security Documents, all fee letters, all Requests for
Advance, all Interest Hedge Agreements between the Borrower, on the one hand,
and the Administrative Agent and the Banks, or any of them, on the other hand,
and all other documents and agreements executed or delivered in connection with
or contemplated by this Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Banks to
-----
the Borrower under the Commitment, not to exceed the Commitment (and, if
applicable, the Incremental Facility Commitment), and evidenced by the Notes
(and shall include Incremental Facility Advances).
"Majority Banks" shall mean Banks the total of whose (a) Commitment
--------------
Ratios (or, if the Commitment has been terminated, portion of the Loans under
the Commitment) and (b) Incremental Facility Commitment Ratios (or, if the
Incremental Facility Commitment has been terminated, portion of the Loans under
the Incremental Facility Commitment) equals or exceeds fifty-one percent (51%)
of the sum of the Commitment Ratios (or, if the Commitment has been terminated,
the Loans under the Commitment) and Incremental Facility Commitment Ratios (or,
if the Incremental Facility Commitment has been terminated, the Loans under the
Incremental Facility Commitment) of all Banks entitled to vote hereunder.
"Material Licenses" shall mean those Licenses without which the
-----------------
Borrower and its Restricted Subsidiaries would no longer be able to operate
their business or any portion thereof and retain the revenue received therefrom,
and the overall effect of the termination, revocation or failure to renew or
replace such Licenses would be to reduce annual Operating Cash Flow (determined
as at the last day of the most recently ended fiscal year of the Borrower) by
ten percent (10%) or more.
"Materially Adverse Effect" shall mean (a) any material adverse effect
-------------------------
upon the business, assets, liabilities, financial condition, results of
operations, properties, or, in the reasonable opinion of the Administrative
Agent and the Majority Banks, business prospects of the Borrower and its
Subsidiaries on a consolidated basis, taken as a whole, or (b) a material
adverse effect upon the binding nature, validity, or enforceability of this
Agreement and the Notes, or upon the ability of the Borrower and its Restricted
Subsidiaries to perform the payment obligations or other material obligations
under this Agreement or any other Loan Document, or upon the value of the
Collateral or upon the rights, benefits or interests of the Banks in and to the
-13-
Loans or the rights of the Administrative Agent and the Banks in the Collateral;
in either case, whether resulting from any single act, omission, situation,
status, event or undertaking, or taken together with other such acts, omissions,
situations, statuses, events or undertakings.
"Maturity Date" shall mean March 31, 2006, or as the case may be, such
-------------
earlier date as payment of the Obligations shall be due (whether by
acceleration, reduction of the Commitment to zero or otherwise).
"Multiemployer Plan" shall mean a multiemployer pension plan as
------------------
defined in Section 3(37) of ERISA to which the Borrower or any ERISA Affiliate
is or has been required to contribute subsequent to September 25, 1980.
"Necessary Authorizations" shall mean all approvals and licenses from,
------------------------
and all filings and registrations with, any governmental or other regulatory
authority, including, without limiting the foregoing, the Material Licenses and
all approvals, licenses, filings and registrations under the Communications Act
and any other applicable federal, state, or local law, regulation or other
provision, necessary in order to enable the Restricted Subsidiaries to engage in
their existing telecommunications business, including operating as a competitive
access provider and investing in other Persons who operate as competitive access
providers.
"Net Income" shall mean, for the Borrower and the Restricted
----------
Subsidiaries, on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Proceeds" shall mean, with respect to any sale, transfer or other
------------
disposition of (A) ownership interests in any of the Restricted Subsidiaries by
the Borrower, or (B) assets by any of its Restricted Subsidiaries, the aggregate
amount of cash received for such assets (including, without limitation, any
payments received for non-competition covenants, consulting or management fees
in connection with such sale, and any portion of the amount received evidenced
by a promissory note or other evidence of Indebtedness issued by the purchaser),
net of (i) amounts reserved, if any, for taxes payable with respect to any such
sale (after application of any available losses, credits or other offsets), (ii)
reasonable and customary transaction costs properly attributable to such
transaction and payable by the Borrower or any of its Restricted Subsidiaries
(other than to an Affiliate) in connection with such sale, lease, transfer or
other disposition of assets, including, without limitation, commissions, (iii)
until actually received by the Borrower or any of its Restricted Subsidiaries,
any portion of the amount received held in escrow or evidenced by a promissory
note or
-14-
other evidence of Indebtedness issued by a purchaser or non-compete agreement or
covenant or otherwise for which compensation is paid over time, (iv) reasonable
and customary amounts, if any, reserved for indemnification claims payable with
respect to any such sale, and (v) the amounts, if any, of any purchase money
debt, with respect to the assets sold, owed by the Borrower or a Restricted
Subsidiary, and repaid with the proceeds of such sale. Upon receipt by the
Borrower or any of its Restricted Subsidiaries of (A) amounts referred to in
item (iii) of the preceding sentence, or (B) if there shall occur any reduction
in the reserves referred to in items (i) and (iv) of the preceding sentence
resulting in a payment to the Borrower or the Restricted Subsidiary, such
amounts shall then be deemed to be "Net Proceeds."
"Notes" shall mean, collectively, those certain promissory notes in
-----
the aggregate original principal amount of $400,000,000, and issued to each of
the Banks by the Borrower, each one substantially in the form of Exhibit C
---------
attached hereto, any other promissory note issued by the Borrower to evidence
the Loans pursuant to this Agreement, and any extensions, renewals, or
amendments to, or replacements of, the foregoing.
"Notice of Incremental Facility Commitment" shall mean the notice by
-----------------------------------------
the Borrower of the Incremental Facility Commitment, which notice shall be
substantially in the form of Exhibit D attached hereto and shall be delivered to
---------
the Administrative Agent, the Documentation Agent and the Banks.
"Obligations" shall mean all payment and performance obligations of
-----------
every kind, nature and description of the Borrower, its Restricted Subsidiaries,
and any other obligors to the Banks, the Documentation Agent, or the
Administrative Agent, or any of them, under this Agreement and the other Loan
Documents (including any interest, fees and other charges on the Loans or
otherwise under the Loan Documents that would accrue but for the filing of a
bankruptcy action with respect to the Borrower, whether or not a claim for such
amounts is allowed in such bankruptcy action and including Obligations to the
Banks pursuant to Section 5.12 hereof) as they may be amended from time to time,
or as a result of making the Loans, whether such obligations are direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, now
existing or hereafter arising.
"Operating Cash Flow" shall mean as of the end of any period, on a
-------------------
consolidated basis, (a) Net Income of the Borrower and the Restricted
Subsidiaries, for such period (after eliminating any extraordinary gains and
losses and excluding any interest income of such Persons from any loans to any
Affiliates of such Persons), plus (b) to the extent deducted in determining
----
-15-
Net Income, the sum of the following for such period: (i) depreciation and
amortization expense, (ii) interest with respect to Indebtedness for Money
Borrowed, (iii) tax expense, and (iv) all other non-cash items.
"Payment Date" shall mean the last day of each calendar quarter for
------------
Base Rate Advances and, subject to Section 2.3(b) hereof, the last day of each
Interest Period for LIBOR Advances.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
----
successor thereto.
"Permitted Asset Sales" shall mean (a) sales, transfers or other
---------------------
dispositions of assets by the Borrower or any Restricted Subsidiary in bona fide
arms' length transactions which do not generate, in any calendar year, Net
Proceeds in excess of $5,000,000 in the aggregate, (b) the disposition in the
ordinary course of business of assets which are no longer used or useful in the
business of the Borrower or the Restricted Subsidiaries, (c) the sales,
transfers or other dispositions of assets which are exchanged for, or the Net
Proceeds of which are used to procure or acquire, similar assets of equal or
greater value within twelve (12) months from receipt of such Net Proceeds by the
Borrower or any Restricted Subsidiary, and (d) the transfer of assets (including
cash or cash equivalents) among the Borrower and its Restricted Subsidiaries or
the transfer of assets (including cash or cash equivalents but excluding the
Licenses) between or among Restricted Subsidiaries so long as in each case, such
assets remain assets of the Borrower or the Restricted Subsidiaries.
"Permitted Liens" shall mean, as applied to any Person:
---------------
(a) Any Lien in favor of the Administrative Agent given to
secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and
(ii) Liens for taxes, assessments, judgments, governmental charges or
levies or claims the non-payment of which is being diligently
contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been set aside on such
Person's books, but only so long as no foreclosure, distraint, sale or
similar proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, landlords,
laborers and materialmen and other statutory Liens incurred in the
ordinary course of business for sums not yet due or being diligently
contested in good
-16-
faith, if reserves or appropriate provisions shall have been made
therefor in accordance with GAAP;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance or
other social security obligations which are not overdue for more than
ninety (90) days;
(e) Restrictions on the transfer of, or other Liens upon, the
Licenses or assets of the Borrower or its Subsidiaries imposed by
Applicable Law or the Licenses;
(f) Easements, rights-of-way, zoning restrictions and other
similar encumbrances on the use of real property and minor
imperfections of title which do not materially interfere with the
ordinary conduct of the business of such Person or the use of such
property;
(g) Purchase money security interests to the extent such
security interests secure Indebtedness permitted pursuant to Section
7.1(f)(1) hereof;
(h) Liens reflected by Uniform Commercial Code financing
statements filed in respect of Capitalized Lease Obligations permitted
pursuant to Section 7.1(f)(2) hereof and true leases of the Borrower
or any of its Subsidiaries;
(i) Liens granted to secure the performance of letters of
credit, bids, tenders, contracts, leases, public or statutory
obligations, surety, customs, appeal and performance bonds and other
similar obligations to the extent otherwise permitted under this
Agreement and not incurred in connection with Indebtedness for Money
Borrowed, the obtaining of advances or the payment of the deferred
purchase price of any property and which do not exceed $20,000,000 in
the aggregate outstanding from time to time;
(j) Liens of utility companies and other Persons pursuant to
pole attachment agreements and restrictions on the transfer of rights
under pole attachment agreements; and
(k) Liens arising as a result of any grant of indefeasible
rights-of-use or rights-of-access or similar rights and grants of
nominal title to assets entered into in the ordinary course of
business and consistent with the Borrower's past practice.
-17-
"Person" shall mean an individual, corporation, limited liability company,
------
association, partnership, joint venture, trust or estate, an unincorporated
organization, a government or any agency or political subdivision thereof, or
any other entity.
"Plan" shall mean an employee benefit plan within the meaning of Section
----
3(3) of ERISA or any other employee benefit plan maintained or contributed to by
the Borrower or any ERISA Affiliate.
"Prime Rate" shall mean, at any time, the rate of interest adopted by The
----------
Toronto-Dominion Bank, at its main office in New York, New York, as its
reference rate for the determination of interest rates for loans of varying
maturities in United States dollars to United States residents of varying
degrees of creditworthiness and being quoted at such time by such bank as its
"prime rate." The Prime Rate is not necessarily the lowest rate of interest
charged to borrowers of The Toronto-Dominion Bank.
"Reportable Event" shall mean, with respect to any Employee Pension Plan,
----------------
an event described in Section 4043(b) of ERISA, excluding, however, such events
(i) as to which the PBGC by regulation has waived the requirement of Section
4043(a) of ERISA that it be notified within thirty (30) days of the occurrence
of such event or (ii) which could not reasonably be expected to have a Material
Adverse Effect.
"Request for Advance" shall mean a certificate designated as a "Request for
-------------------
Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance hereunder, which shall be in substantially the form of Exhibit E
---------
attached hereto, and shall, among other things, (i) specify the date of the
Advance, which shall be a Business Day, the amount of the Advance, the type of
Advance (LIBOR or Base Rate), and, with respect to LIBOR Advances, the Interest
Period selected by the Borrower, (ii) state that there shall not exist, on the
date of the requested Advance and after giving effect thereto, a Default, as of
the date of such Advance and after giving effect thereto, and (iii) the
Applicable Margin.
"Restricted Payment" shall mean any direct or indirect distribution,
------------------
dividend or other payment to any Person (other than to the Borrower or any
wholly-owned Subsidiary of the Borrower) on account of any general or limited
partnership interest in, or shares of Capital Stock or other securities of, the
Borrower or any of its Restricted Subsidiaries (other than dividends payable
solely in stock of the Borrower or such Restricted Subsidiary, as applicable,
and stock splits), including, without limitation, any direct or indirect
distribution, dividend or other payment to any Person (other than to the
Borrower or any Subsidiary of the
-18-
Borrower) on account of any warrants or other rights or options to acquire
shares of capital stock of the Borrower or any of its Restricted Subsidiaries
and payments on Indebtedness for Money Borrowed owed to TCGI by the Borrower.
The foregoing to the contrary notwithstanding, any payments to employees in
respect of any employee stock option plan or equity incentive plan shall not be
deemed to be a Restricted Payment or a Restricted Purchase.
"Restricted Purchase" shall mean any payment (including, without
-------------------
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption or other acquisition or retirement of any
general or limited partnership interest in, or shares of capital stock or other
securities of the Borrower or any of the Restricted Subsidiaries, including,
without limitation, any warrants or other rights or options to acquire shares of
capital stock of the Borrower or any of the Restricted Subsidiaries or any
release or forgiveness of Indebtedness by the Borrower or its Restricted
Subsidiaries to any partner, shareholder or Affiliate of any such Person. The
foregoing to the contrary notwithstanding, any payments to employees in respect
of any employee stock option plan or equity incentive plan shall not be deemed
to be a Restricted Payment or a Restricted Purchase.
"Restricted Subsidiaries" shall mean, collectively, TC New York Holdings I,
-----------------------
Inc., TC New York Holdings II, Inc., TC Systems, Inc., Teleport Communications
New York and TCG Payphones, Inc., each of which is wholly-owned directly or
indirectly by the Borrower, and shall include, without limitation, any future
Subsidiaries of the foregoing, the Port Authority Maintenance Division and the
5ESS Facilities Services Division of the Borrower.
"Scheduled Principal Payments" shall mean, with respect to the Loans for
----------------------------
any period, the excess, if any, of (a) the sum of the highest aggregate
principal amount of the Loans outstanding during such period over (b) the lowest
amount of the Commitment during such period.
"Security Documents" shall mean the Assignment of Rights by Partner, the
------------------
Borrower's Pledge Agreement, the Subsidiary Guaranty, the Subsidiary Pledge
Agreements, the Assignment of Intercompany Indebtedness, any other agreement or
instrument providing collateral for the Obligations whether now or hereafter in
existence, and any filings, instruments, agreements, and documents related
thereto or to this Agreement, and providing the Administrative Agent, for the
benefit of the Banks, with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the Administrative
-----------------
Agent, for the benefit of the Banks, or in favor
-19-
of any Bank created hereunder or under any of the Security Documents to secure
the Obligations.
"Shareholders" shall mean collectively, Cox, TCI, Comcast and Continental,
------------
any Subsidiary of any of the foregoing Persons as to which such Person has
voting and economic control, and any of their respective successors or assigns
approved by the Banks.
"Sprint" shall mean, collectively, Sprint Corporation, a Kansas
------
corporation, and any Subsidiary of the foregoing as to which Sprint Corporation
has voting and economic control.
"Subsidiary" shall mean, as applied to any Person, any corporation of which
----------
more than fifty percent (50%) of the outstanding stock (other than directors'
qualifying shares) having ordinary voting power to elect a majority of its board
of directors, regardless of the existence at the time of a right of the holders
of any class or classes of securities of such corporation to exercise such
voting power by reason of the happening of any contingency, or any partnership
of which more than fifty percent (50%) of the outstanding partnership interests,
is at the time owned directly or indirectly by such Person, or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries of
such Person.
"Subsidiary Guaranty" shall mean that certain Master Subsidiary Guaranty
-------------------
dated as of May 22, 1995 in favor of the Administrative Agent for the benefit of
the Banks, given by the Restricted Subsidiaries.
"Subsidiary Pledge Agreement" shall mean each Subsidiary Pledge Agreement
---------------------------
between any Restricted Subsidiary having one (1) or more of its own
Subsidiaries, on the one hand, and the Administrative Agent, on the other hand,
each substantially in the form of Exhibit F attached hereto.
---------
"TCGI" shall mean Teleport Communications Group Inc., a Delaware
----
corporation.
"TCI" shall mean Tele-Communications, Inc., a Delaware corporation.
---
"Total Cash Interest Expense" shall mean, as of any calculation date, for
---------------------------
the twelve (12) calendar months immediately preceding the calculation date,
without duplication, (a) the sum of (i) all interest paid with respect to the
Loans after giving effect to any Interest Hedge Agreements; (ii) the interest
portion of payments with respect to Capitalized Lease Obligations and
Indebtedness for Money Borrowed of the Borrower and the Restricted Subsidiaries;
and (iii) the net expense incurred (A) by the Borrower with respect to Interest
Hedge Agreements in
-20-
respect of the Loans and (B) by any Restricted Subsidiary with respect to
Interest Hedge Agreements, minus (b) the amount of cash interest received by the
-----
Borrower and the Restricted Subsidiaries in respect of Indebtedness for Money
Borrowed owed to such Persons by Affiliates of such Persons in an amount not to
exceed twenty-five percent (25%) of clause (a) of this definition.
"Total Debt" shall mean, as of any date, the sum (without duplication) of
----------
(a) the outstanding principal amount of the Loans, (b) the aggregate Capitalized
Lease Obligations and Indebtedness for Money Borrowed for the Borrower and all
Restricted Subsidiaries (other than Indebtedness permitted under Section 7.1(e)
hereof), and (c) the aggregate Guarantees for the Borrower and all Restricted
Subsidiaries.
"Trademarks" shall mean all registered trademarks and pending applications
----------
for trademarks of the Restricted Subsidiaries which are more fully described on
Schedule 2 hereto.
----------
"Unrestricted Subsidiaries" shall mean all Subsidiaries of TCGI other than
-------------------------
the Borrower and the Restricted Subsidiaries.
"Upstream Dividends" shall have the meaning set forth in Section 7.14
------------------
hereof.
Section 1.2 Interpretation. Each definition of an agreement in this
--------------
Article 1 shall, unless otherwise specified, include such agreement as modified,
amended, restated or supplemented from time to time in accordance herewith, and
except where the context otherwise requires, the singular shall include the
plural and vice versa. Except where otherwise specifically restricted,
reference to a party to this Agreement or any other Loan Document includes that
party and its successors and assigns. All capitalized terms used herein which
are defined in Article 9 of the Uniform Commercial Code in effect in the State
of New York on the date hereof and which are not otherwise defined herein shall
have the same meanings herein as set forth therein.
Section 1.3 Cross References. Unless otherwise specified, references in
----------------
this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause in
such Article, Section or definition.
-21-
ARTICLE 2
Loans
-----
Section 2.1 The Loans. The Banks agree, severally, in accordance
---------
with their respective Commitment Ratios and not jointly, upon the terms and
subject to the conditions of this Agreement, to lend and re-lend to the
Borrower, prior to the Maturity Date, an amount not at any one time outstanding
to exceed, in the aggregate, the Commitment. Subject to the terms and
conditions hereof, Advances under the Commitment may be repaid and reborrowed
from time to time on a revolving basis.
Section 2.2 Manner of Borrowing and Disbursement.
------------------------------------
(a) Choice of Interest Rate, Etc. Any Advance shall, at the option of
----------------------------
the Borrower, be made as a Base Rate Advance or a LIBOR Advance; provided,
--------
however, that at such time as there shall have occurred and be continuing a
-------
Default hereunder, the Borrower shall not have the right to receive a LIBOR
Advance, convert an Advance to a LIBOR Advance or continue an existing LIBOR
Advance at the end of its Interest Period. Any notice given to the
Administrative Agent in connection with a requested Advance hereunder shall be
given to the Administrative Agent prior to 11:00 a.m. (New York time) in order
for such Business Day to count toward the minimum number of Business Days
required.
(b) Base Rate Advances.
------------------
(i) Advances. The Borrower shall give the Administrative Agent
--------
in the case of Base Rate Advances at least one (1) Business Day's
irrevocable prior written notice in the form of a Request for Advance,
telephonic or telecopied notice followed immediately by a Request for
Advance; provided, however, that the Borrower's failure to confirm any
-------- -------
telephonic or telecopied notice with a Request for Advance shall not
invalidate any notice so given if acted upon by the Administrative Agent.
Upon receipt of such notice from the Borrower, the Administrative Agent
shall promptly notify each Bank by telephone or telecopy of the contents
thereof.
(ii) Repayments and Conversions. The Borrower may (A) repay or
--------------------------
prepay a Base Rate Advance at any time upon at least one (1) Business Day's
irrevocable prior written notice, or (B) upon at least three (3) Business
Days' irrevocable prior written notice, convert all or a portion of the
principal thereof as one or more LIBOR Advances. On the date indicated by
the Borrower, such Base Rate Advance shall be so repaid or, as applicable,
converted.
-22-
(c) LIBOR Advances.
--------------
(i) Advances. The Borrower shall give the Administrative Agent
--------
in the case of LIBOR Advances at least three (3) Business Days' irrevocable
written notice in the form of a Request for Advance, or notice by telephone
or telecopy followed immediately by a Request for Advance; provided,
--------
however, that the failure of the Borrower to confirm any notice by
-------
telephone or telecopy with a Request for Advance shall not invalidate any
notice so given if acted upon by the Administrative Agent. The
Administrative Agent, whose determination shall be conclusive absent
manifest error, shall determine the available LIBOR Bases and shall notify
the Borrower of such LIBOR Bases. The Borrower shall promptly notify the
Administrative Agent by telecopy or by telephone, and shall immediately
confirm any such telephonic notice in writing, of its selection of a LIBOR
Basis and Interest Period for such Advance. Upon receipt of such notice
from the Borrower, the Administrative Agent shall promptly notify each Bank
by telephone or telecopy of the contents thereof.
(ii) Repayments and Conversions. At least three (3) Business
--------------------------
Days prior to each Payment Date for a LIBOR Advance, subject to Sections
2.2(a) and 2.3(f) hereof, the Borrower shall give the Administrative Agent
written notice specifying whether all or a portion of any LIBOR Advance
outstanding on the Payment Date (a) is to be continued in whole or in part
as a LIBOR Advance, or (b) is to be converted in whole or in part as one or
more Base Rate Advances, or (c) subject to Section 2.7 hereof, is to be
repaid and not continued or converted. Upon such Payment Date such LIBOR
Advance will, subject to the provisions hereof, be so continued or
converted or repaid. If the Borrower fails to give any such notice, such
LIBOR Advance will be converted to a Base Rate Advance.
(d) Notification of Banks. Upon receipt of a Request for Advance, or
---------------------
a notice from the Borrower with respect to any outstanding LIBOR Advance prior
to the Payment Date for such Advance, the Administrative Agent shall promptly
but no later than the close of business on the day of the Administrative Agent's
receipt of such notice notify each Bank (or, in the case of an Incremental
Facility Advance, each Bank having an Incremental Facility Commitment) by
telephone or telecopy of the contents thereof and the amount of such Bank's
portion of the Advance. Each Bank (or, in the case of an Incremental Facility
Advance, each Bank having an Incremental Facility Commitment) shall, not later
than 12:00 noon (New York time) on the date of borrowing specified in such
notice, make available to the Administrative Agent at the Administrative Agent's
Office, or at
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such account as the Administrative Agent shall designate, the amount of its
portion of any Advance which represents an additional borrowing hereunder in
immediately available funds.
(e) Disbursement.
------------
(i) Prior to 2:00 p.m. (New York time) on the date of an Advance
hereunder, the Administrative Agent shall, subject to the satisfaction of
the conditions set forth in Article 3 hereof, disburse the amounts made
available to the Administrative Agent by the Banks by (a) transferring the
amounts so made available by wire transfer pursuant to the Borrower's
instructions, or (b) in the absence of such instructions, crediting the
amounts so made available to the account of the Borrower maintained with
the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice
from a Bank prior to 12:00 noon (New York time) on the date of any Advance
that such Bank will not make available to the Administrative Agent such
Bank's ratable portion of such Advance, the Administrative Agent may assume
that such Bank has made or will make such portion available to the
Administrative Agent on the date of such Advance and the Administrative
Agent may in its sole discretion and in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to
the extent the Bank does not make such ratable portion available to the
Administrative Agent, such Bank agrees to repay to the Administrative Agent
on demand such corresponding amount together with interest thereon, for
each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at the Federal
Funds Rate.
(iii) If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank's
portion of the applicable Advance for purposes of this Agreement. If such
Bank does not repay such corresponding amount immediately upon the
Administrative Agent's demand therefor, the Administrative Agent shall
notify the Borrower and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent, with interest at the
Federal Funds Rate. The failure of any Bank to fund its portion of any
Advance shall not relieve any other Bank of its obligation, if any,
hereunder to fund its respective portion of the Advance on the date of such
borrowing, but no Bank shall be responsible for any such failure of any
other Bank.
-24-
(iv) In the event that, at any time when the Borrower is not in
Default and has otherwise satisfied each of the conditions in Section 3.2
hereof, a Bank for any reason fails or refuses to fund its portion of an
Advance and such failure shall continue for a period in excess of thirty
(30) days, then, until such time as such Bank has funded its portion of
such Advance (which late funding shall not absolve such Bank from any
liability it may have to the Borrower), or all other Banks have received
payment in full from the Borrower (whether by repayment or prepayment) or
otherwise of an amount equal to the principal and interest due in respect
of such Advance, such non-funding Bank shall not have the right (A) to vote
regarding any issue on which voting is required or advisable under this
Agreement or any other Loan Document, and such Bank's portion of the Loans
shall not be counted as outstanding for purposes of determining "Majority
Banks" hereunder, and (B) to receive payments of principal, interest or
fees from the Borrower, the Administrative Agent or the other Banks in
respect of its portion of the Loans.
Section 2.3 Interest.
--------
(a) On Base Rate Advances. Interest on each Base Rate Advance shall
---------------------
be computed on the basis of a year of 365/366 days for the actual number of days
elapsed and shall be payable at the Base Rate Basis for such Advance, in arrears
on the applicable Payment Date. Interest on Base Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance shall be
-----------------
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on every three-month anniversary of the beginning of
such Interest Period. Interest on LIBOR Advances then outstanding shall also be
due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate Basis. If the
---------------------------------------------- ----------
Borrower fails to give the Administrative Agent timely notice of its selection
of a LIBOR Basis, or if for any reason (other than the failure of the
Administrative Agent to take any action required of it hereunder) a
determination of a LIBOR Basis for any Advance is not timely concluded, the Base
Rate Basis shall apply to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence of an
---------------------
Event of Default described in Section 8.1(b)
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hereof, the outstanding principal balance of the Loans shall bear interest at
the Default Rate. Such interest shall be payable on demand by the Majority
Banks and shall accrue until the earlier of (i) waiver or cure of the applicable
Event of Default, (ii) agreement by the Majority Banks to rescind the charging
of interest at the Default Rate, or (iii) payment in full of the Obligations.
(e) LIBOR Rate Contracts. At no time may the number of outstanding
--------------------
LIBOR Advances exceed eight (8).
(f) Applicable Margin. With respect to any Advance, the Applicable
-----------------
Margin shall be as set forth in a certificate of the chief financial officer of
the Borrower delivered to the Administrative Agent based upon the Leverage Ratio
for the most recent fiscal quarter end, effective as of the fifth (5th) Business
Day after the financial statements referred to in Section 6.1, or Section 6.2
hereof, as the case may be, are required to be furnished by the Borrower to the
Administrative Agent and each Bank for the fiscal quarter most recently ended,
expressed as a per annum rate of interest as follows:
Leverage Ratio Base Rate Advance LIBOR Advance
------------------------ Applicable Margin Applicable Margin
------------------ ------------------
6.50:1 or greater 0.750% 1.750%
6.00:1 or greater, but 0.500% 1.500%
less than 6.50:1
5.50:1 or greater, but 0.250% 1.250%
less than 6.00:1
5.00:1 or greater, but 0.000% 1.000%
less than 5.50:1
4.50:1 or greater, but 0.000% 0.875%
less than 5.00:1
Less than 4.50:1 0.000% 0.750%
The Borrower may, at its option, provide financial statements for any quarter
ending December 31 (which financial statements shall be prepared in accordance
with the standards governing financial statements required to be delivered
pursuant to Section 6.1 hereof) for purposes of determining the Applicable
Margin, which financial statements may be used for purposes of this Section in
lieu of financial statements required by Section 6.2 hereof. In the event that
the Borrower fails to timely provide the financial statements referred to above
in accordance with the terms of Section 6.1 or 6.2 hereof, as applicable, and
without prejudice to any additional rights under Section 8.2 hereof, any
increase
-26-
in the Applicable Margin due to any increase in the Leverage Ratio as reflected
in such financial statements shall be effective retroactively as of the fifth
(5th) Business Day after the date on which such financial statements were due,
but any decrease in the Applicable Margin due to any decrease in the Leverage
Ratio shall be effective as of the fifth (5th) Business Day after such financial
statements are delivered.
(g) Interest Calculation. In calculating interest hereunder,
--------------------
interest shall be calculated to, but not including, the date of payment.
Section 2.4 Fees. In addition, the Borrower agrees to pay the
----
Administrative Agent on behalf of each of the Banks, in accordance with their
respective Commitment Ratios, a commitment fee on the aggregate unborrowed
balance of the Commitment, for each day from the Agreement Date until the
Maturity Date, at a rate of three-eighths of one percent (3/8%) per annum. Such
commitment fee shall be computed on the basis of a year of 365/366 days for the
actual number of days elapsed, shall be payable quarterly in arrears on the last
day of each calendar quarter, and shall be fully earned when due, and shall be
non-refundable when paid. A final payment of any commitment fee then payable
shall also be due and payable on the Maturity Date.
Section 2.5 Mandatory Commitment Reductions.
-------------------------------
(a) Scheduled Reductions. Commencing March 31, 2000, and at the end
--------------------
of each calendar quarter thereafter, the Commitment (based upon the Commitment
as of January 1, 2000) shall be automatically and permanently reduced as set
forth below (which reductions are in addition to those set forth in Section
2.5(b) and Section 2.6 hereof):
-00-
Xxxxxxxxx Xxxxxxxxxx
of Reduction of
Commitment
Dates of Commitment Reduction as of January 1, 2000
----------------------------- ----------------------
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 0.78125%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 2.18750%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 3.43750%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 4.37500%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 5.62500%
March 31, 2005, June 30, 2005,
September 30, 2005 and December 31, 2005 6.25000%
March 31, 2006 9.37500%
(b) Reduction From Asset Sales. Except with respect to Permitted
--------------------------
Asset Sales, on the Business Day of the receipt by the Borrower or any
Restricted Subsidiary of any Net Proceeds with respect to any sale of any equity
ownership in or assets of any Restricted Subsidiary, the Commitment shall be
automatically and permanently reduced by an amount equal to the Net Proceeds of
such sale. Reductions of the Commitment under this Section shall be done pro
rata to the Loans under the Commitment and the Loans under the Incremental
Facility Commitment and, to the extent applicable, shall be credited against the
reductions set forth in Section 2.5(a) hereof in inverse chronological order.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall have
-------------------------------
the right, at any time and from time to time after the Agreement Date and prior
to the Maturity Date, upon at least three (3) Business Days' prior written
notice to the Administrative Agent to cancel or reduce permanently all or a
portion of the Commitment (or the Incremental Facility Commitment), on a pro
rata basis among the Banks, provided, however, that any such partial reduction
-------- -------
shall be made in an amount not less than $5,000,000 and in integral multiples of
not less than $1,000,000. As of the date of cancellation or reduction set forth
in such notice, the Commitment (or the Incremental Facility Commitment) shall be
permanently reduced to the amount stated in the Borrower's notice for all
purposes herein. Reductions in the Commitment pursuant to this Section
-28-
shall be credited against the then remaining reductions set forth in Section
2.5(a) in inverse chronological order.
Section 2.7 Payments and Repayments.
------------------------
(a) Repayment Prior to Payment Date. The principal amount of any Base
-------------------------------
Rate Advance may be repaid in full or ratably among the Banks in part at any
time, without penalty. LIBOR Advances may be prepaid in full, or ratably among
the Banks in part prior to the applicable Payment Date, upon two (2) Business
Days' prior written notice to the Administrative Agent, provided that the
Borrower shall reimburse the Banks, on demand by the applicable Bank or the
Administrative Agent, for any loss or out-of-pocket expense incurred by any Bank
in connection with such prepayment, as set forth in Section 2.10 hereof. Any
prepayment hereunder shall be in amounts of not less than $500,000 and in
integral multiples of $250,000 or, if less, the remaining outstanding balance of
any Base Rate Advance or LIBOR Advance.
(b) Loans in Excess of Commitment and/or Incremental Facility
---------------------------------------------------------
Commitment. If, at any time, the amount of the Loans then outstanding under the
----------
Commitment shall exceed the Commitment, the Borrower shall, on such date and
subject to Sections 2.10 and 2.11 hereof, make a repayment of the principal
amount of the Loans in an amount equal to such excess, together with any accrued
interest and fees with respect thereto. If, at any time, the amount of the
Loans then outstanding under the Incremental Facility Commitment shall exceed
the Incremental Facility Commitment, the Borrower shall, on such date and
subject to Sections 2.10 and 2.11 hereof, make a repayment of the principal
amount of the Loans in an amount equal to such excess, together with any accrued
interest and fees with respect thereto.
(c) Repayment Upon Sales of Assets. Except with respect to Permitted
------------------------------
Asset Sales, the Borrower shall, on the Business Day of the receipt by the
Borrower or any Restricted Subsidiary of any Net Proceeds with respect to any
sale of any equity ownership in or assets of any Restricted Subsidiary, make a
repayment of principal of the Loans then outstanding in an amount equal to the
Net Proceeds of such sale (which amount shall be applied pro rata to the Loans
under the Commitment and to the Loans under the Incremental Facility
Commitment).
(d) Maturity Date. In addition to the foregoing, a final payment of
-------------
all Obligations then outstanding shall be due and payable on the Maturity Date.
-29-
Section 2.8 Notes; Loan Accounts.
--------------------
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein and shall be evidenced by the Notes (and, if
applicable, the Incremental Facility Notes). One Note shall be payable to the
order of each Bank, in accordance with such Bank's respective Commitment Ratio.
The Notes shall be issued by the Borrower to the Banks and shall be duly
executed and delivered by one or more Authorized Signatories.
(b) Each Bank may open and maintain on its books in the name of the
Borrower a loan account with respect to its portion of the Loans and interest
thereon. Each Bank which opens such a loan account shall debit such loan
account for the principal amount of its portion of each Advance made by it and
accrued interest thereon, and shall credit such loan account for each payment on
account of principal of or interest on its Loans. The records of a Bank with
respect to the loan account maintained by it shall be prima facie evidence of
----- -----
its portion of the Loans and accrued interest thereon absent manifest error, but
the failure of any Bank to make any such notations or any error or mistake in
such notations shall not affect the Borrower's repayment obligations with
respect to such Loans.
Section 2.9 Manner of Payment.
-----------------
(a) Each payment (including any prepayment) by the Borrower on account
of the principal of or interest on the Loans, commitment fees and any other
amount owed to the Banks or the Administrative Agent or any of them under this
Agreement or the Notes shall be made not later than 1:00 p.m. (New York time) on
the date specified for payment under this Agreement to the Administrative Agent
at the Administrative Agent's Office, for the account of the Banks or the
Administrative Agent, as the case may be, in lawful money of the United States
of America in immediately available funds. Any payment received by the
Administrative Agent after 1:00 p.m. (New York time) shall be deemed, solely for
the purpose of the calculation of interest, received on the next Business Day.
Receipt by the Administrative Agent of any payment intended for any Bank or
Banks hereunder prior to 1:00 p.m. (New York time) on any Business Day shall be
deemed to constitute receipt by such Bank or Banks on such Business Day. In the
case of a payment for the account of a Bank, the Administrative Agent will
promptly, but no later than the close of business on the date such payment is
deemed received, thereafter distribute the amount so received in like funds to
such Bank. If the Administrative Agent shall not have received any payment from
the Borrower as and when due, the Administrative Agent will promptly notify the
Banks accordingly. In the event that the Administrative Agent shall fail to
make
-30-
distribution to any Bank as required under this Section 2.9, the Administrative
Agent agrees to pay such Bank interest from the date such payment was due until
paid at the Federal Funds Rate.
(b) The Borrower agrees to pay principal, interest, fees and all other
amounts due hereunder, under the Notes or under any other Loan Document without
set-off or counterclaim or any deduction whatsoever and free and clear of all
taxes, levies and withholding other than taxes on the revenues or net income of
any Bank and except as provided in Section 2.13. If the Borrower is required by
Applicable Law to deduct any taxes from or in respect of any sum payable to the
Administrative Agent or any Bank hereunder, under any Note or under any other
Loan Document: (i) the sum payable hereunder or thereunder, as applicable,
shall be increased to the extent necessary to provide that, after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.9(b)), the Administrative Agent or such Bank, as
applicable, receives an amount equal to the sum it would have received had no
such deductions been made; (ii) the Borrower shall make such deductions from
such sums payable hereunder or thereunder, as applicable, and pay the amount so
deducted to the relevant taxing authority as required by Applicable Law; and
(iii) the Borrower shall provide the Administrative Agent or such Bank, as
applicable, with evidence satisfactory to the Administrative Agent or such Bank,
as applicable, that such deducted amounts have been paid to the relevant taxing
authority.
(c) Prior to the acceleration of the Loans under Section 8.2 hereof,
if some but less than all amounts due from the Borrower are received by the
Administrative Agent or any of the Banks with respect to the Obligations, such
amounts shall be paid to the Administrative Agent, and the Administrative Agent
shall distribute such amounts in the following order of priority, all on a pro
rata basis to the Banks: (i) to the payment on a pro rata basis of any fees or
expenses then due and payable to the Administrative Agent, the Banks, or any of
them; (ii) to the payment of interest then due and payable on the Loans (except
as provided in Section 2.2(e) hereof); (iii) to the payment of all other amounts
not otherwise referred to in this Section 2.9(c) then due and payable to the
Administrative Agent or the Banks, or any of them, hereunder or under the Notes
or any other Loan Document; and (iv) to the payment of principal then due and
payable on the Loans (and, for purposes of this clause (iv), Obligations under
Interest Hedge Agreements, to the extent the Administrative Agent has received
notice that such Obligations are then due and payable, shall be paid on a pro
rata basis with the Loans).
(d) Subject to any contrary provisions in the definition of Interest
Period, if any payment under this
-31-
Agreement or any of the other Loan Documents is specified to be made on a day
which is not a Business Day, it shall be made on the next Business Day, and such
extension of time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
Section 2.10 Reimbursement.
-------------
(a) Whenever any Bank shall sustain or incur any losses or out-of-
pocket expenses in connection with (i) failure by the Borrower to borrow any
LIBOR Advance, convert an outstanding Base Rate Advance to a LIBOR Advance or to
continue any outstanding LIBOR Advance after having given notice of its
intention to borrow, continue or convert in accordance with Section 2.2 hereof
(whether by reason of the Borrower's election not to proceed or the non-
fulfillment of any of the conditions set forth in Article 3), or (ii) prepayment
on other than a Payment Date (or failure to prepay after giving notice thereof)
of any LIBOR Advance in whole or in part for any reason, the Borrower agrees to
pay to such Bank, upon such Bank's demand, an amount sufficient to compensate
such Bank for all such losses and out-of-pocket expenses. Any Bank claiming
compensation under this Section 2.10 shall notify the Borrower of any event
occurring after the Agreement Date entitling such Bank to such compensation as
promptly as practicable, but in any event within forty-five (45) days, after
such Bank obtains actual knowledge thereof; provided that if such Bank fails to
--------
give such notice within forty-five (45) days after it obtains actual knowledge
of such an event, such Bank shall, with respect to such compensation in respect
of any costs resulting from such event, only be entitled to payment under this
Section 2.10 for costs incurred from and after the date forty-five (45) days
prior to the date that such Bank does give such notice. Such Bank's good faith
determination of the amount of such losses or out-of-pocket expenses, as set
forth in writing and accompanied by calculations in reasonable detail
demonstrating the basis for its demand, shall be presumptively correct absent
manifest error.
(b) Losses subject to reimbursement hereunder shall include, without
limiting the generality of the foregoing, but without duplication, expenses
incurred by any Bank or any participant of such Bank permitted hereunder in
connection with the re-employment of funds prepaid, paid, repaid, not borrowed,
not converted or not paid, as the case may be, and will be payable whether the
Maturity Date is changed by virtue of an amendment hereto (unless such amendment
expressly waives such payment) or as a result of acceleration of the Obligations
and whether such Bank has a "matched funding" of such Advance.
-32-
Section 2.11 Pro Rata Treatment.
------------------
(a) Advances. Each Advance from the Banks hereunder, shall be made
--------
pro rata on the basis of the respective Commitment Ratios (or, if applicable,
the Incremental Facility Commitment Ratios) of the Banks.
(b) Payments. Each payment and prepayment of principal of the Loans,
--------
and, except as provided in Section 2.2(e) and Article 10 hereof, each payment of
interest on the Loans, shall be made to the Banks pro rata on the basis of their
respective unpaid principal amounts outstanding under the Notes (and, if
applicable, the Incremental Facility Notes) immediately prior to such payment or
prepayment. If any Bank shall obtain any payment (whether involuntary, through
the exercise of any right of set-off, or otherwise) on account of the Loans in
excess of its ratable share of the Loans under its Commitment Ratio, such Bank
shall forthwith purchase from the other Banks such participations in the portion
of the Loans made by them as shall be necessary to cause such purchasing Bank 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 Bank, such purchase from each Bank shall be rescinded and such Bank
shall repay to the purchasing Bank the purchase price to the extent of such
recovery. The Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.11(b) may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Bank were the
direct creditor of the Borrower in the amount of such participation.
Section 2.12 Capital Adequacy. If after the date hereof, the
----------------
adoption of any Applicable Law regarding the capital adequacy of banks or bank
holding companies, or any change in Applicable Law (whether adopted before or
after the Agreement Date) or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by such Bank
with any directive regarding capital adequacy (whether or not having the force
of law) of any such governmental authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on any Bank's
capital as a consequence of its obligations hereunder with respect to the Loans
and the Commitment to a level below that which it could have achieved but for
such adoption, change or compliance (taking into consideration such Bank's
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Bank's capital was fully utilized
prior to such adoption, change or compliance) by an amount reasonably deemed by
such Bank to be material, then, upon demand by such
-33-
Bank, the Borrower shall promptly pay to such Bank such additional amounts as
shall be sufficient to compensate such Bank for such reduced return, together
with interest on such amount from the fifteenth (15th) day after the date of
demand or the Maturity Date, as applicable, until payment in full thereof at the
Default Rate. Any Bank claiming compensation under this Section 2.12 shall
notify the Borrower of any event occurring after the date of this Agreement
entitling such Bank to such compensation as promptly as practicable, but in any
event within forty-five (45) days, after such Bank obtains actual knowledge
thereof; provided that if such Bank fails to give such notice within forty-five
--------
(45) days after it obtains actual knowledge of such an event, such Bank shall,
with respect to such compensation in respect of any costs resulting from such
event, only be entitled to payment under this Section 2.12 for costs incurred
from and after the date forty-five (45) days prior to the date that such Bank
does give such notice. A certificate of such Bank setting forth the amount to
be paid to such Bank by the Borrower as a result of any event referred to in
this paragraph and supporting calculations in reasonable detail shall be
presumptively correct absent manifest error.
Section 2.13 Bank Tax Forms. On or prior to the Agreement Date and,
--------------
so long as a change in law does not prevent it from doing so, on or prior to the
first Business Day of each calendar year thereafter, each Bank which is
organized in a jurisdiction other than the United States shall provide each of
the Administrative Agent and the Borrower with a properly executed original of
Forms 4224 or 1001 (or any successor form) prescribed by the Internal Revenue
Service or other documents satisfactory to the Borrower and the Administrative
Agent, and properly executed Internal Revenue Service Forms W-8 or W-9, as the
case may be, certifying (i) as to such Bank's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to such Bank hereunder and under the Notes or (ii) that all payments to
be made to such Bank hereunder and under the Notes are subject to such taxes at
a rate reduced to zero by an applicable tax treaty. Each such Bank agrees to
provide the Administrative Agent and the Borrower with new forms prescribed by
the Internal Revenue Service upon the expiration or obsolescence of any
previously delivered form, or after the occurrence of any event requiring a
change in the most recent forms delivered by it to the Administrative Agent and
the Borrower, unless a change in law prevents it from delivering such form or
making such certification.
-34-
Section 2.14 Incremental Facility Advances.
-----------------------------
(a) Subject to the terms and conditions of this Agreement, the
Borrower may request on or prior to December 31, 1998, the Incremental Facility
Commitment on any Business Day; provided, however, that the Borrower may not
-------- -------
request the Incremental Facility Commitment or an Incremental Facility Advance
after the occurrence or during the existence of an Event of Default and
provided, further, that the Borrower may request only one Incremental Facility
-------- -------
Commitment (although such commitment may be from more than one Bank). The
aggregate amount of the Incremental Facility Commitment shall be (i) in a
minimum amount of $10,000,000 and (ii) in an integral multiple of $1,000,000.
The aggregate amount of the Incremental Facility Commitment and outstanding
Incremental Facility Advances shall not exceed $100,000,000. The maturity date
for the Incremental Facility Advances shall be no earlier than the Maturity
Date. The decision of any Bank to make an Incremental Facility Commitment to
the Borrower shall be at such Bank's sole discretion. The Incremental Facility
Commitment shall be (x) on a revolving credit basis, (y) have scheduled
commitment reductions in the aggregate from the effective date thereof no
greater than the scheduled reductions for the Commitment in the aggregate from
the Agreement Date and (z) governed by this Agreement on terms and conditions no
more restrictive than those set forth for the Commitment and Loans in this
Agreement and the other Loan Documents (including, but not limited to, sharing
on a pari passu basis the guaranties and Security Interests granted under the
---- -----
Loan Documents but excluding the Commitment reductions set forth in Section
2.5(a) hereof).
(b) Prior to the effectiveness of the Incremental Facility Commitment,
the Borrower shall (i) deliver to the Administrative Agent and the Banks a
Notice of Incremental Facility Commitment and (ii) provide revised projections
to the Documentation Agent, the Administrative Agent and the Banks which shall
be in form and substance reasonably satisfactory to the Administrative Agent and
the Documentation Agent and shall demonstrate the Borrower's ability to timely
repay such Incremental Facility Commitment and any Incremental Facility Advances
thereunder and to comply with the covenants contained in Sections 7.8, 7.9 and
7.10 of this Agreement.
(c) No Incremental Facility Commitment shall by itself result in any
reduction of the Commitment or of the Commitment Ratio of the Bank making such
Incremental Facility Commitment.
(d) Incremental Facility Advances (i) shall bear interest at the Base
Rate Basis or the LIBOR Basis; (ii) subject to Section 2.14(a) hereof, shall be
repaid as agreed to by the Borrower and the Bank making such Incremental
Facility Advances;
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(iii) shall for all purposes be Loans and Obligations hereunder and under the
Loan Documents; (iv) shall be represented by an Incremental Facility Note in
substantially the form of Exhibit G attached hereto; and (v) shall rank pari
--------- ----
passu with the other Loans for purposes of Sections 2.9(c) and 8.2 hereof.
-----
Incremental Facility Advances may not be made until the Commitment is fully
drawn.
(e) Incremental Facility Advances shall be requested by the Borrower
pursuant to a request (which shall be in substantially the form of a Request for
Advance) delivered in the same manner as a Request for Advance, but shall be
funded pro rata only by those Banks holding the Incremental Facility Commitment.
ARTICLE 3
Conditions Precedent
--------------------
Section 3.1 Conditions Precedent to Effectiveness of Agreement. The
--------------------------------------------------
obligation of the Banks to undertake the Commitment and the effectiveness of
this Agreement are subject to the prior or contemporaneous fulfillment of each
of the following conditions:
(a) The Administrative Agent shall have received each of the
following on behalf of the Banks:
(i) duly executed Notes;
(ii) duly executed Acknowledgement of Guarantors by each
Restricted Subsidiary in substantially the form of Exhibit H attached
---------
hereto;
(iii) copies of insurance binders or certificates covering the
assets of the Borrower and its Restricted Subsidiaries, and otherwise
meeting the requirements of Section 5.5 hereof;
(iv) legal opinions of (A) Roland, Fogel, Koblenz & Xxxx, New
York regulatory counsel to the Borrower; (B) Dow, Xxxxxx & Xxxxxxxxx,
special counsel to the Borrower; and (C) Xxxx Xxxxxxx, Esq., in-house
counsel to the Borrower, each as counsel to the Borrower and the Restricted
Subsidiaries, addressed to each Bank and the Administrative Agent, and
dated as of the Agreement Date substantially in the form of Exhibits I, J
---------- -
and K attached hereto;
-
-36-
(v) duly executed Certificate of Financial Condition for the
Borrower and the Restricted Subsidiaries on a consolidated and
consolidating basis, given by the chief financial officer of the Borrower
certifying the absence of a Default or Event of Default;
(vi) any required consents to the closing of this Agreement or to
the execution, delivery and performance of this Agreement and the other
Loan Documents, each of which shall be in form and substance satisfactory
to the Administrative Agent and the Banks;
(vii) the loan certificate of the Borrower dated as of the
Agreement Date, in substantially the form attached hereto as Exhibit L,
---------
including a certificate of incumbency with respect to each Authorized
Signatory of such Person, together with the following items: (A) a true,
complete and correct copy of the Certificate/Articles of Incorporation and
By-laws of the Borrower as in effect on the Agreement Date, (B)
certificates of good standing for the Borrower issued by the Secretary of
State or similar state official for the state of incorporation of the
Borrower and for the States of New York and New Jersey, and (C) a true,
complete and correct copy of the corporate resolutions of the Borrower
authorizing the Borrower to execute, deliver and perform this Agreement and
the other Loan Documents to which it is a party;
(viii) a loan certificate from each of the Restricted
Subsidiaries in substantially the form attached hereto as Exhibit M,
---------
including a certificate of incumbency with respect to each Authorized
Signatory of such Person, together with the following items: (A) a copy of
the Certificate of Incorporation of each such Subsidiary, certified to be
true, complete and correct by the Secretary of State from the jurisdiction
of incorporation of such Subsidiary, (B) certificates of good standing for
such Subsidiary, issued by the Secretary of State or similar state official
for each state in which such Subsidiary is incorporated or qualified to do
business, (C) a true, complete and correct copy of the By-Laws of such
Subsidiary, as in effect on the Agreement Date, and (D) a true, complete
and correct copy of the resolutions of such Subsidiary authorizing it to
execute, deliver and perform the Loan Documents to which it is a party;
(ix) receipt by the Administrative Agent on behalf of each Bank
and the Documentation Agent of all fees payable to such Persons on the
Agreement Date; and
-37-
(x) all such other documents as the Administrative Agent may
reasonably request, certified by an appropriate governmental official or an
Authorized Signatory if so requested.
(b) The Administrative Agent shall have received evidence satisfactory
to it that all material Necessary Authorizations, including all necessary
consents to the closing of this Agreement, have been obtained or made, are in
full force and effect and are not subject to any pending or, to the knowledge of
the Borrower, threatened reversal or cancellation, and the Administrative Agent
shall have received a certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative Agent and the
Banks that each of the representations and warranties in Article 4 hereof are
true and correct in all material respects as of the Agreement Date and that no
Default or Event of Default then exists or is continuing.
Section 3.2 Conditions Precedent to Each Advance. The obligation of
------------------------------------
the Banks to make each Advance after the Agreement Date which, if funded, would
increase the principal amount of the Loans outstanding hereunder, is subject to
the fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower under
this Agreement and the other Loan Documents (including, without limitation, all
representations and warranties with respect to the Restricted Subsidiaries),
which, pursuant to Section 4.2 hereof, are made at and as of the time of such
Advance, shall be true and correct at such time in all material respects, both
before and after giving effect to the application of the proceeds of such
Advance, and after giving effect to any updates to information provided to the
Banks in accordance with the terms of such representations and warranties, and
no Default or Event of Default shall then exist or be caused thereby;
(b) The Administrative Agent shall have received a duly executed
Request for Advance;
(c) With respect to any Advance relating to any Acquisition or the
formation of any Restricted Subsidiary which is permitted hereunder, the
Administrative Agent and the Banks shall have received such documents and
instruments relating to such Acquisition or formation of a new Restricted
Subsidiary as are described in Section 5.13 hereof or otherwise required herein;
and
-38-
(d) No Materially Adverse Effect shall have occurred.
ARTICLE 4
Representations and Warranties
------------------------------
Section 4.1 Representations and Warranties. The Borrower hereby
------------------------------
agrees, represents and warrants, upon the Agreement Date, and at all times
thereafter as required pursuant to the terms hereof, in favor of the
Administrative Agent and each Bank that:
(a) Organization; Ownership; Power; Qualification. The Borrower is a
---------------------------------------------
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. The Borrower has the corporate power and authority to
own its properties and to carry on its business as now being and as proposed
hereafter to be conducted. Except as set forth on Schedule 3, each Restricted
----------
Subsidiary is a corporation or partnership duly organized, validly existing and
in good standing under the laws of the state of its incorporation or formation,
as the case may be, and has the corporate or partnership power, as the case may
be, and authority to own its properties and to carry on its business as now
being and as proposed hereafter to be conducted. The Borrower and each of the
Restricted Subsidiaries are duly qualified, in good standing and authorized to
do business in each jurisdiction in which the character of their respective
properties or the nature of their respective businesses requires such
qualification or authorization except where failure to so qualify and be
qualified could not reasonably be expected to have a Materially Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the corporate
-----------------------------
power and has taken all necessary corporate action to authorize it to borrow
hereunder, to execute, deliver and perform this Agreement and each of the other
Loan Documents to which it is a party in accordance with their respective terms,
and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by the Borrower and is, and each
of the other Loan Documents to which the Borrower is party is, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its respective terms, subject, as to enforcement of remedies, to
the following qualifications: (i) an order of specific performance and an
injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law, and (ii) enforcement may
be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors' rights
generally (insofar as any such law relates to the bankruptcy, insolvency or
similar event of the Borrower).
-39-
(c) Restricted Subsidiaries: Authorization; Enforceability. The
-------------------------------------------------------
Restricted Subsidiaries and the Borrower's direct and indirect ownership thereof
as of the Agreement Date are as set forth on Schedule 4 attached hereto, and to
----------
the extent such Restricted Subsidiaries are corporations, the Borrower has the
unrestricted right to vote the issued and outstanding shares of the Restricted
Subsidiaries shown thereon and such shares of such Restricted Subsidiaries have
been duly authorized and issued and are fully paid and nonassessable. Each
Restricted Subsidiary has the corporate or partnership power and has taken all
necessary corporate or partnership action to authorize it to execute, deliver
and perform each of the Loan Documents to which it is a party in accordance with
their respective terms and to consummate the transactions contemplated by this
Agreement and by such Loan Documents. Each of the Loan Documents to which any
Restricted Subsidiary is party is a legal, valid and binding obligation of such
Restricted Subsidiary enforceable against such Restricted Subsidiary in
accordance with its terms, subject, as to enforcement of remedies, to the
following qualifications: (i) an order of specific performance and an
injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law, and (ii) enforcement may
be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors' rights
generally (insofar as any such law relates to the bankruptcy, insolvency or
similar event of any such Restricted Subsidiary). The Borrower's ownership
interest in each of the Restricted Subsidiaries represents a direct or indirect
controlling interest of such Restricted Subsidiary for purposes of directing or
causing the direction of the management and policies of each Restricted
Subsidiary.
(d) Compliance with Other Loan Documents and Contemplated
-----------------------------------------------------
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and the Notes, and by the
Borrower and the Restricted Subsidiaries of each of the other Loan Documents to
which they are respectively party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent or
approval, governmental or otherwise, not already obtained other than consents
and approvals that may be required from the issuers of Licenses in connection
with the exercise by the Administrative Agent or the Banks of certain of their
remedies under the Loan Documents, (ii) violate any Applicable Law respecting
the Borrower or any Restricted Subsidiary, (iii) conflict with, result in a
breach of, or constitute a default under the certificate or articles of
incorporation or by-laws or partnership agreements, as the case may be, as
amended, of the Borrower or of any Restricted Subsidiary, or under any material
indenture, agreement, or other
-40-
instrument, including without limitation the Material Licenses, to which the
Borrower or any of the Restricted Subsidiaries is a party or by which any of
them or their respective properties may be bound, or (iv) result in or require
the creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Borrower or any of the Restricted
Subsidiaries, except for Permitted Liens.
(e) Business. The Borrower, together with the Restricted
--------
Subsidiaries, is engaged in providing a variety of telecommunications services,
including operating a telecommunications infrastructure for an office park and
satellite earth station complex, operating a regional switched
telecommunications network, providing public pay telephone service, providing
private line services and serving as a competitive access provider and local
exchange carrier for local telephone service.
(f) Licenses, etc. The Material Licenses have been duly issued and
--------------
are in full force and effect. The Borrower and the Restricted Subsidiaries are
in compliance in all material respects with all of the provisions thereof. The
Borrower and the Restricted Subsidiaries have secured all material Necessary
Authorizations and all such Necessary Authorizations are in full force and
effect. Neither any Material License nor any material Necessary Authorization
is the subject of any pending or, to the best of the Borrower's knowledge,
threatened revocation. The Licenses of the Borrower and the Restricted
Subsidiaries as of the Agreement Date are set forth on Schedule 1 hereto.
----------
(g) Compliance with Law. The Borrower and the Restricted Subsidiaries
-------------------
are in substantial compliance with all material Applicable Law.
(h) Title to Assets. The Borrower has good and legal title to, or a
---------------
valid leasehold interest in, all of its assets. Each of the Restricted
Subsidiaries has good and legal title to, or a valid leasehold interest in, all
of its assets. None of such properties or assets is subject to any Liens,
except for Permitted Liens. Except for financing statements evidencing
Permitted Liens, no financing statement under the Uniform Commercial Code as in
effect in any jurisdiction and no other filing which names the Borrower or any
of the Restricted Subsidiaries as debtor or which covers or purports to cover
any of the assets of the Borrower or any of the Restricted Subsidiaries is
currently effective and on file in any state or other jurisdiction, and neither
the Borrower nor any of the Restricted Subsidiaries has signed any such
financing statement or filing or any security agreement authorizing any secured
party thereunder to file any such financing statement or filing.
-41-
(i) Litigation. There is no action, suit, proceeding or investigation
----------
pending against, or, to the knowledge of the Borrower, threatened against the
Borrower or any of the Restricted Subsidiaries or any of their respective
properties, including without limitation the Material Licenses, in any court or
before any arbitrator of any kind or before or by any governmental body
(including without limitation the FCC), except as set forth on Schedule 5
----------
attached hereto, which (i) calls into question the validity of this Agreement or
any other Loan Document, or (ii) individually or collectively involves the
possibility of any judgment or liability not fully covered by insurance (subject
to applicable deductibles), as to which, in any such case, there is a reasonable
possibility of an adverse determination and which, if determined adversely to
the Borrower or any of the Restricted Subsidiaries, could reasonably be expected
to have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Borrower
-----
and each of the Restricted Subsidiaries required by law to be filed have been
duly filed and all federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower or any of the Restricted Subsidiaries
or imposed upon the Borrower or any of the Restricted Subsidiaries or any of
their respective properties, income, profits or assets, which are due and
payable, have been paid, except any such taxes (i) (x) the payment of which the
Borrower or any Restricted Subsidiary is diligently contesting in good faith by
appropriate proceedings, (y) for which adequate reserves to the extent required
by GAAP have been provided on the books of the Borrower or the Restricted
Subsidiary involved, and (z) as to which no Lien other than a Permitted Lien has
attached and no foreclosure, distraint, sale or similar proceedings have been
commenced, or (ii) which may result from audits not yet conducted. The charges,
accruals and reserves on the books of the Borrower and each Restricted
Subsidiary in respect of taxes are, in the judgment of the Borrower, adequate.
(k) Financial Statements. The Borrower has furnished or caused to be
--------------------
furnished to the Administrative Agent and the Banks the audited financial
statements for the Borrower and the Restricted Subsidiaries on a consolidated
basis for the fiscal year ended December 31, 1996, all of which have been
prepared in accordance with GAAP and present fairly in all material respects the
financial position of the Borrower and the Restricted Subsidiaries on a
consolidated and consolidating basis, as the case may be, on and as at such
dates and the results of operations for the periods then ended (subject, in the
case of unaudited financial statements, to normal year-end and audit adjustments
and the absence of footnotes). As of the Agreement Date, neither the Borrower
nor any of the Restricted Subsidiaries
-42-
has any material liabilities, contingent or otherwise, other than as disclosed
in the financial statements referred to in the preceding sentence or as set
forth or referred to in this Agreement, or as incurred in the ordinary course of
business since the date of such financial statements, and there are no material
unrealized losses of the Borrower or any of the Restricted Subsidiaries and no
material anticipated losses of the Borrower or any of the Restricted
Subsidiaries other than those which have been previously disclosed in writing to
the Administrative Agent and the Banks and identified as such.
(l) No Material Adverse Change. There has occurred no event since
--------------------------
December 31, 1996 which has or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. The Borrower and each ERISA Affiliate and each of their
-----
respective Plans are in material compliance with ERISA and the Code and neither
the Borrower nor any of its ERISA Affiliates has incurred any accumulated
funding deficiency with respect to any such Plan within the meaning of ERISA or
the Code which has not been corrected. The Borrower and each ERISA Affiliate
have complied in all material respects with all requirements of COBRA. Neither
the Borrower nor any of its Restricted Subsidiaries has made any promises of
retirement or other benefits to employees, except as set forth in the Plans, in
written agreements with such employees, or in the Borrower's employee handbook
and memoranda to employees. Neither the Borrower nor any of its ERISA
Affiliates has incurred any material liability to PBGC in connection with any
such Plan. The assets of each such Plan which is subject to Title IV of ERISA
are sufficient to provide for the payment of all "benefit liabilities" (within
the meaning of Section 4041 of ERISA) due under the Plan upon termination except
to the extent that any such failure to maintain sufficient assets would not
result in any Materially Adverse Effect. No Reportable Event has occurred and
is continuing with respect to any such Plan. Neither the Borrower nor any ERISA
Affiliate has engaged in any "prohibited transaction" (as such term is defined
in Section 406 of ERISA or Section 4975 of the Code) which would subject the
Borrower or any such ERISA Affiliate to any material tax or penalty on
prohibited transactions imposed by ERISA Section 502 or Code Section 4975.
Neither the Borrower nor any ERISA Affiliate has withdrawn from or caused a
partial withdrawal to occur with respect to any Plan which is a Multiemployer
Plan and neither the Borrower nor any ERISA Affiliate knows, has reason to know
or has received notice that any such Plan is in reorganization (as defined in
Code Section 418 or Title IV of ERISA) (which reorganization or withdrawal could
reasonably be expected to have a Materially Adverse Effect). As of the date
hereof, neither the Borrower nor any ERISA Affiliate has any material obligation
or material liability to contribute to any Multiemployer Plan. No withdrawal
-43-
liability to any Multiemployer Plan has been or is expected to be incurred which
would result in a Materially Adverse Effect. Neither the Borrower nor any ERISA
Affiliate has engaged in any transaction which could subject it to any liability
under Section 4096 or Section 4212 of ERISA.
(n) Compliance with Regulations G, T, U and X. Neither the Borrower
-----------------------------------------
nor any of its Subsidiaries is engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing or
carrying, and neither the Borrower nor any of its Subsidiaries owns or presently
intends to acquire, any "margin security" or "margin stock" as defined in
Regulations G, T, U, and X (12 C.F.R. Parts 207, 220, 221 and 224) of the Board
of Governors of the Federal Reserve System (herein called "margin stock"). None
------------
of the proceeds of the Loans will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of said Regulations G, T, U,
and X. The Borrower has not taken, caused or authorized to be taken, and will
not take any action which might cause this Agreement or the Notes to violate
Regulation G, T, U, or X or any other regulation of the Board of Governors of
the Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as now in effect or as the same may hereafter be in effect. If so
requested by the Administrative Agent, the Borrower will furnish the
Administrative Agent with (i) a statement or statements in conformity with the
requirements of Federal Reserve Forms G-3 and/or U-1 referred to in Regulations
G and U of said Board of Governors and (ii) other documents evidencing its
compliance with the margin regulations, reasonably requested by the
Administrative Agent. Neither the making of the Loans nor the use of proceeds
thereof will violate, or be inconsistent with, the provisions of Regulation G,
T, U, or X of said Board of Governors.
(o) Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is required to register under the provisions of the Investment
Company Act of 1940, as amended, and neither the entering into or performance by
the Borrower and its Subsidiaries of this Agreement and the Loan Documents to
which they are respectively party nor the issuance of the Notes violates any
provision of such Act or requires any consent, approval or authorization of, or
registration with, the Securities and Exchange Commission or any other
governmental or public body or authority pursuant to any provisions of such Act.
(p) Governmental Regulation. Neither the Borrower nor any of the
-----------------------
Restricted Subsidiaries is required to obtain any
-44-
consent, approval, authorization, permit or license which has not already been
obtained from, or effect any filing or registration which has not already been
effected with, any federal, state or local regulatory authority in connection
with the performance, in accordance with their respective terms, of this
Agreement or any other Loan Document the failure of which to obtain could
reasonably be expected to have a Materially Adverse Effect.
(q) Absence of Default, Etc. The Borrower and the Restricted
------------------------
Subsidiaries are in compliance in all material respects with all of the
provisions of their respective partnership agreements, Certificates or Articles
of Incorporation and By-Laws, as the case may be, and no event has occurred or
failed to occur (including, without limitation, any matter which could create a
Default hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes a Default. Neither the
Borrower nor any of the Restricted Subsidiaries is a party to or bound by any
contract or agreement continuing after the Agreement Date, or bound by any
Applicable Law, that could reasonably be expected to have a Materially Adverse
Effect or result in the loss of any Material License.
(r) Accuracy and Completeness of Information. All information,
----------------------------------------
reports, prospectuses and other papers and data relating to the Borrower or any
of its Subsidiaries and furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or the Banks were, at the time
furnished, true, complete and correct in all material respects to the extent
necessary to give the Administrative Agent and the Banks true and accurate
knowledge of the subject matter as of such date.
(s) Agreements with Affiliates. Except for agreements or arrangements
--------------------------
with Affiliates wherein the Borrower or one or more of the Restricted
Subsidiaries provides goods or services to or receives goods or services from
such Affiliates for fair consideration or which are set forth on Schedule 6
----------
attached hereto, neither the Borrower nor any of the Restricted Subsidiaries has
(i) any written agreements or binding arrangements of any kind with any
Affiliate or (ii) any management or consulting agreements of any kind with any
Affiliate.
(t) Payment of Wages. The Borrower and each of the Restricted
----------------
Subsidiaries are in compliance with the Fair Labor Standards Act, as amended, in
all material respects, and to the knowledge of the Borrower and each of the
Restricted Subsidiaries, such Persons have paid all minimum and overtime wages
required by law to be paid to their respective employees.
-45-
(u) Priority. The Security Interest is a valid and to the extent
--------
required by Applicable Law, upon the filing of appropriate financing statements,
perfected first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Banks, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens.
(v) Solvency. As of the Agreement Date, after giving effect to the
--------
transactions contemplated by the Loan Documents (i) the property of the
Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the
Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be greater than the amount that will be
required to pay its probable liabilities (including debts) as they become
absolute and matured. For purposes of this Section, "debt" means any liability
on a claim, and "claim" means (i) the right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
(w) Patents, Trademarks, etc. The Borrower and each of the Restricted
-------------------------
Subsidiaries owns, possesses or has the right to use all material licenses and
rights to all material patents, Trademarks, trademark rights, trade names, trade
name rights, service marks, and copyrights, and rights with respect thereto,
necessary to conduct its business in all material respects as now conducted,
without known conflict with any patent, Trademark, trade name, service xxxx,
license or copyright of any other Person, and in each case, with respect to
patents, Trademarks, trademark rights, trade names, trade name and copyrights
and licenses with respect thereto owned by Borrower or the Restricted
Subsidiaries, subject to no mortgage, pledge, lien, lease, encumbrance, charge,
security interest, title retention agreement or option except for Permitted
Liens. All such licenses and rights with respect to patents, Trademarks,
trademark rights, trade names, trade name rights, service marks and copyrights
are in full force and effect, and to the extent applicable, the Borrower and the
Restricted Subsidiaries are in compliance in all material respects with all of
the provisions thereof. No such material patent, Trademark, trademark rights,
trade names, trade name rights, service marks, copyrights or licenses is subject
to
-46-
any pending or, to the best of the Borrower's knowledge, threatened attack or
revocation.
Section 4.2 Survival of Representations and Warranties, etc. All
------------------------------------------- ---
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct, at and as of
the Agreement Date and on the date of each Advance except to the extent
previously modified or waived in accordance with the terms hereof and to the
extent relating specifically to the Agreement Date or some other date. All
representations and warranties made under this Agreement and the other Loan
Documents shall survive, and not be waived by, the execution hereof by the Banks
and the Administrative Agent, any investigation or inquiry by any Bank or the
Administrative Agent or the making of any Advance under this Agreement.
ARTICLE 5
General Covenants
-----------------
So long as any of the Obligations is outstanding and unpaid or the Banks
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled), and unless the Majority Banks, or such
greater number of Banks as may be expressly provided herein, shall otherwise
consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. The
---------------------------------------------
Borrower will, and will cause each of the Restricted Subsidiaries to:
(i) except as permitted in Section 7.4 hereof, preserve and
maintain its existence, and its material rights, franchises, licenses and
privileges in the state of its incorporation, including, without limiting
the foregoing, the Material Licenses and all other material Necessary
Authorizations; and
(ii) qualify and remain qualified and authorized to do business
in each jurisdiction in which the character of its properties or the nature
of its business requires such qualification or authorization except where
the failure to so qualify and be authorized could not reasonably be
expected to have a Materially Adverse Effect.
Section 5.2 Business; Compliance with Applicable Law. The Borrower
----------------------------------------
will, and will cause each of the Restricted Subsidiaries to, (a) engage in the
business described in Section 4.1(e) hereof and related businesses and no
unrelated activities,
-47-
and (b) comply in all material respects with the requirements of all Applicable
Law.
Section 5.3 Maintenance of Properties. The Borrower will, and will
-------------------------
cause each of the Restricted Subsidiaries to, maintain or cause to be maintained
in the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment or
unused assets and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower
----------------------------------------
will, and will cause each of its Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of account
in which complete entries will be made in accordance with GAAP and reflecting
all transactions required to be reflected by GAAP and keep accurate and complete
records of their respective properties and assets. The Borrower and its
Subsidiaries will maintain a fiscal year ending on December 31.
Section 5.5 Insurance.
---------
(a) The Borrower will, and will cause each of the Restricted
Subsidiaries to:
(i) Maintain insurance including, but not limited to, business
interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the
Borrower and each of the Restricted Subsidiaries as is prudent for
similarly situated companies engaged in the telecommunications industry;
and
(ii) Keep their respective assets insured against loss or damage
by fire, theft, burglary, loss in transit, explosions and hazards by
extended coverage, in amounts which are prudent for the telecommunications
industry; all premiums thereon to be paid by or on behalf of the Borrower
and its Restricted Subsidiaries.
(b) In the event that the Borrower or any of the Restricted
Subsidiaries receives the proceeds in respect of any of the assets of any of the
Restricted Subsidiaries of any insurance maintained pursuant to Section
5.5(a)(ii) hereof in excess of $5,000,000 in any calendar year, which proceeds
are not committed to be used within twelve (12) calendar months from receipt
thereof by the Borrower or the Restricted Subsidiaries,
-48-
as the case may be, to obtain replacement assets, the Borrower shall make a
principal payment of the Loans in an amount equal to the amount of such
proceeds. Any payment hereunder shall be deemed to be Net Proceeds and applied
in accordance with, and subject to, Section 2.7(c) hereof, and shall permanently
reduce the Commitment in accordance with Section 2.5(b) hereof.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and will
---------------------------
cause each of the Restricted Subsidiaries to, pay and discharge all material
taxes, including, without limitation, withholding taxes, assessments and
governmental charges or levies required to be paid by them or imposed upon them
or their income or profits or upon any properties belonging to them, prior to
the date on which penalties attach thereto, and all lawful claims for labor,
materials and supplies which, if unpaid, might become a Lien or charge upon any
of their properties; except that no such tax, assessment, charge, levy or claim
need be paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves to the extent required by GAAP shall
have been set aside on the appropriate books, but only so long as such tax,
assessment, charge, levy or claim does not become a Lien or charge other than a
Permitted Lien and no foreclosure, distraint, sale or similar proceedings shall
have been commenced. The Borrower will, and will cause each of the Restricted
Subsidiaries to, timely file all information returns required by federal, state
or local tax authorities. The Borrower will at all times during the term of
this Agreement remain part of the affiliated group filing a consolidated return
of which TCGI is a member for federal income tax paying purposes.
Section 5.7 Compliance with ERISA.
---------------------
(a) The Borrower shall, and shall cause the Restricted Subsidiaries
to, make all contributions to any Employee Pension Plan when such contributions
are due and not incur any "accumulated funding deficiency" within the meaning of
Section 412(a) of the Code, whether or not waived, and will otherwise comply
with the requirements of the Code and ERISA with respect to the operation of all
Plans, except to the extent that the failure to so comply could not reasonably
be expected to have a Materially Adverse Effect.
(b) The Borrower shall, and shall cause the Restricted Subsidiaries
to, comply in all respects with the requirements of COBRA with respect to any
Plans subject to the requirements thereof, except to the extent that the failure
to so comply could not reasonably be expected to have a Materially Adverse
Effect.
-49-
(c) The Borrower shall furnish to the Administrative Agent (i) within
thirty (30) days after any officer of the Borrower obtains knowledge that a
"prohibited transaction" (within the meaning of Section 406 of ERISA or Section
4975 of the Code) has occurred with respect to any Plan of the Borrower or its
ERISA Affiliates that any Reportable Event with respect to which the reporting
requirement under ERISA Section 4043 has not been waived or which could result
in a Materially Adverse Effect has occurred with respect to any Employee Pension
Plan or that PBGC has instituted or will institute proceedings under Title IV of
ERISA to terminate any Employee Pension Plan or to appoint a trustee to
administer any Employee Pension Plan, a statement setting forth the details as
to such prohibited transaction, Reportable Event or termination or appointment
proceedings and the action which it (or any other Employee Pension Plan sponsor
if other than the Borrower) proposes to take with respect thereto, together with
a copy of the notice of such Reportable Event given to PBGC if a copy of such
notice is available to the Borrower or any of its ERISA Affiliates, (ii)
promptly after receipt thereof, a copy of any material notice the Borrower or
any of its ERISA Affiliates receives from PBGC, or the Internal Revenue Service
or the Department of Labor which sets forth or proposes any action or
determination with respect to such Plan, (iii) promptly after the filing
thereof, any annual report required to be filed pursuant to ERISA in connection
with each Plan maintained by the Borrower or any of its ERISA Affiliates,
including only the Restricted Subsidiaries, and (iv) promptly upon the
Administrative Agent's request therefor, such additional information concerning
any such Plan as may be reasonably requested by the Administrative Agent.
(d) The Borrower will promptly notify the Administrative Agent of any
material excise taxes which have been assessed or which the Borrower or any of
its ERISA Affiliates has reason to believe may be assessed against the Borrower
or any of its ERISA Affiliates by the Internal Revenue Service or the Department
of Labor with respect to any Plan of the Borrower or its ERISA Affiliates.
(e) Within the time required for notice to the PBGC under Section
302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent of any
lien arising under Section 302(f) of ERISA in favor of any Plan of the Borrower
or its ERISA Affiliates.
(f) The Borrower will notify the Administrative Agent within thirty
(30) days after Borrower or any ERISA Affiliate has any material present or
future obligation to make or to contribute to a Multiemployer Plan, and such
notification will include the projected contributions for the next twelve (12)
months. The Borrower will notify the Administrative Agent within
-50-
thirty (30) days after the Borrower or any ERISA Affiliate knows that any
Multiemployer Plan under which the Borrower or any such ERISA Affiliate is an
employer, is in reorganization, as defined in Code Section 418 or Title IV of
ERISA, or is insolvent. The Borrower will promptly notify the Administrative
Agent of any withdrawal liability imposed upon the Borrower or any ERISA
Affiliate under ERISA Section 420(1)(a) with respect to any Plan.
(g) The Borrower will not, and will not permit any of its ERISA
Affiliates to take any of the following actions or permit any of the following
events to occur if such action or event together with all other such actions or
events would subject the Borrower or any of its ERISA Affiliates to any tax,
penalty, or other liabilities which could reasonably be expected to have a
Materially Adverse Effect:
(i) engage in any transaction in connection with which the
Borrower or any ERISA Affiliate could be subject to either a civil penalty
assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section
4975 of the Code;
(ii) terminate any Employee Pension Plan in a manner, or take any
other action, which could result in any liability of the Borrower or any
ERISA Affiliate to the PBGC;
(iii) fail to make full payment when due of all amounts which,
under the provisions of any Plan, the Borrower or any ERISA Affiliate is
required to pay as contributions thereto, or permit to exist any
accumulated funding deficiency within the meaning of Section 412(a) of the
Code, whether or not waived, with respect to any Employee Pension Plan; or
(iv) permit the present value of all benefit liabilities under
all Employee Pension Plans which are subject to Title IV of ERISA to exceed
the present value of the assets of such Plans allocable to such benefit
liabilities (within the meaning of Section 4041 of ERISA), except as may be
permitted under actuarial funding standards adopted in accordance with
Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrower will, and will
----------------------
cause each of the Restricted Subsidiaries to, permit representatives of the
Administrative Agent and after the occurrence of a Default, any of the Banks,
upon reasonable notice, to (i) visit and inspect the properties of the Borrower
or any of the Restricted Subsidiaries during business hours, (ii) inspect and
make extracts from and copies of their respective books and records, and (iii)
discuss with their
-51-
respective principal officers their respective businesses, assets, liabilities,
financial positions, results of operations and business prospects. The Borrower
and each of the Restricted Subsidiaries will also permit representatives of the
Administrative Agent to discuss with their respective accountants the Borrower's
and the Restricted Subsidiaries' businesses, assets, liabilities, financial
positions, results of operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any
------------------------------
provisions herein or in any other Loan Document, the Borrower will, and will
cause each of the Restricted Subsidiaries to, pay any and all of their
respective Indebtedness when and as it becomes due or to the extent of trade
payables of such Persons otherwise in accordance with ordinary business
practices customary for similarly situated companies in the telecommunications
industry, other than amounts diligently disputed in good faith and for which
adequate reserves have been set aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower may only use the
---------------
aggregate proceeds of all Advances directly or indirectly: (a) to fund Capital
Expenditures; (b) for working capital needs and for general corporate purposes,
including, without limitation, advances and loans to Affiliates; (c) for
distributions through TCGI to make interest payments on public Indebtedness For
Money Borrowed of TCGI and (d) for Acquisitions and investments permitted
hereunder. No proceeds of Advances hereunder shall be used for the purchase or
carrying or the extension of credit for the purpose of purchasing or carrying,
any margin stock within the meaning of Regulations G, T, U, and X of the Board
of Governors of the Federal Reserve System.
Section 5.11 Real Estate. Subject to Section 7.12 hereof, the
-----------
Borrower will, and will cause the Restricted Subsidiaries to, grant a mortgage
to the Administrative Agent securing the Obligations or such amount thereof as
is equal to the fair market value of such real estate, in form and substance
reasonably satisfactory to the Administrative Agent, covering (a) any parcel of
real estate owned by the Borrower or any Restricted Subsidiary not subject to a
Permitted Lien described in clause (i) of the definition thereof having a fair
market value, exclusive of equipment acquired by the Borrower or any of the
Restricted Subsidiaries after the Agreement Date, the value of which exceeds
$5,000,000 individually, and (b) all parcels of real estate owned by the
Borrower and the Restricted Subsidiaries not subject to a Permitted Lien
described in clause (i) of the definition thereof at such time as the aggregate
fair market value of all such real estate equals or exceeds $10,000,000. The
Borrower will, and will cause the Restricted Subsidiaries to, deliver to the
Administrative Agent all documentation, including opinions of
-52-
counsel and policies of title insurance, which in the reasonable opinion of the
Administrative Agent are appropriate with each such grant, including any phase I
environmental audit reasonably requested by the Majority Banks.
Section 5.12 Indemnity. The Borrower agrees to indemnify and hold
---------
harmless each Bank and the Administrative Agent, and each of their respective
affiliates, employees, representatives, shareholders, officers and directors
(any of the foregoing shall be an "Indemnitee") from and against any and all
----------
claims, liabilities, losses, damages, actions, reasonable attorneys' fees and
expenses (as such fees and expenses are incurred) and demands by any party,
including the costs of investigating and defending such claims, whether or not
the Borrower, any Subsidiary or the Person seeking indemnification is the
prevailing party (a) resulting from any breach or alleged breach by the Borrower
or any Subsidiary of the Borrower of any representation or warranty made
hereunder; or (b) otherwise arising out of (i) the Commitment or otherwise under
this Agreement, any Loan Document or any transaction contemplated hereby or
thereby, including, without limitation, the use of the proceeds of Loans
hereunder in any fashion by the Borrower or the performance of their respective
obligations under the Loan Documents by the Borrower or any of the Restricted
Subsidiaries, (ii) allegations of any participation by the Banks or the
Administrative Agent, or any of them, in the affairs of the Borrower or any of
its Subsidiaries, or allegations that any of them has any joint liability with
the Borrower or any of its Subsidiaries for any reason, (iii) any claims against
the Banks or the Administrative Agent, or any of them, by any shareholder or
other investor in or lender to the Borrower or any Subsidiary, by any brokers or
finders or investment advisers or investment bankers retained by the Borrower or
by any other third party, arising out of the Commitment or otherwise under this
Agreement or any other Loan Document; or (c) in connection with taxes (not
including federal or state income taxes or other taxes based solely upon the
revenues of such Persons), fees, and other charges payable in connection with
the Loans, or the execution, delivery, and enforcement of this Agreement, the
Security Documents, the other Loan Documents, and any amendments thereto or
waivers of any of the provisions thereof; unless the Person seeking
indemnification hereunder is determined in such case to have acted with gross
negligence or willful misconduct, in any case, by a final, non-appealable
judicial order. The obligations of the Borrower under this Section 5.12 are in
addition to, and shall not otherwise limit, any liabilities which the Borrower
might otherwise have in connection with any warranties or similar obligations of
the Borrower in any other Loan Document.
Section 5.13 Covenants Regarding Formation of Restricted Subsidiaries
--------------------------------------------------------
and Acquisitions; Partnership, Restricted
-----------------------------------------
-53-
Subsidiaries. At the time of (i) any Acquisition by a Restricted Subsidiary,
------------
(ii) any Acquisition of a Person which becomes a Restricted Subsidiary, or (iii)
the formation of any new Restricted Subsidiary which is permitted under this
Agreement, the Borrower will, and will cause the Restricted Subsidiaries, as
appropriate, to (a) provide to the Administrative Agent an executed Subsidiary
Guaranty for such new Restricted Subsidiary (subject to receipt of any Necessary
Authorizations), in substantially the form of Exhibit N attached hereto, which
---------
shall constitute both a Security Document and a Loan Document for purposes of
this Agreement, as well as a loan certificate for such new Restricted
Subsidiary, substantially in the form of Exhibit M attached hereto, together
---------
with appropriate attachments; (b) pledge to the Administrative Agent all of the
stock or partnership interests (or other instruments or securities evidencing
ownership) of such Restricted Subsidiary which is acquired or formed,
beneficially owned by the Borrower or any of the Restricted Subsidiaries, as the
case may be, as additional Collateral for the Obligations to be held by the
Administrative Agent in accordance with the terms of an extant Borrower Pledge
Agreement, an extant Subsidiary Pledge Agreement, or a new Borrower Pledge
Agreement or Subsidiary Pledge Agreement in substantially the forms of Exhibits
--------
O and F, respectively, attached hereto, or an Assignment of Rights by Partner in
- -
substantially the form attached hereto as Exhibit A, and execute and deliver to
---------
the Administrative Agent all such documentation for such pledge as, in the
reasonable opinion of the Administrative Agent, is appropriate; (c) upon
reasonable request by the Administrative Agent, provide revised financial
projections for the remainder of the fiscal year and for each subsequent year
until the Maturity Date which reflect such Acquisition or formation (to the
extent the value of such Acquisition or formation equals or exceeds $5,000,000),
certified by the Chief Financial Officer of the Borrower, together with a
statement by such Person that no Default exists or would be caused by such
Acquisition or formation, (d) obtain all material Necessary Authorizations for
the execution and delivery of the foregoing documents, and (e) all other
documentation, including one or more opinions of counsel, reasonably
satisfactory to the Administrative Agent which in its reasonable opinion is
appropriate with respect to such Acquisition or the formation of such Restricted
Subsidiary. Any document, agreement or instrument executed or issued pursuant
to this Section 5.13 shall be a "Loan Document" for purposes of this Agreement.
Section 5.14 Payment of Wages. The Borrower shall and shall cause
----------------
each of the Restricted Subsidiaries to at all times comply, in all material
respects, with the requirements of the Fair Labor Standards Act, as amended,
including, without limitation, the provisions of such Act relating to the
payment of
-54-
minimum and overtime wages as the same may become due from time to time.
Section 5.15 Further Assurances. The Borrower will promptly cure, or
------------------
cause to be cured, defects in the creation and issuance of any of the Notes and
the execution and delivery of any of the Loan Documents (including this
Agreement), resulting from any acts or failure to act by the Borrower or any of
the Restricted Subsidiaries or any employee or officer thereof. The Borrower at
its expense will promptly execute and deliver to the Administrative Agent and
the Banks, or cause to be executed and delivered to the Administrative Agent and
the Banks, all such other and further documents, agreements, and instruments in
compliance with or accomplishment of the covenants and agreements of the
Borrower in the Loan Documents, including this Agreement, or more fully to state
the obligations set out herein or in any of the Loan Documents, or to obtain any
consents, all as may be necessary or appropriate in connection therewith and as
may be reasonably requested.
ARTICLE 6
Information Covenants
---------------------
So long as any of the Obligations is outstanding and unpaid or the Banks
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Banks shall
otherwise consent in writing, the Borrower will furnish or cause to be furnished
to each Bank and the Administrative Agent, at their respective offices:
Section 6.1 Quarterly Financial Statements and Information. Within
----------------------------------------------
forty-five (45) days after the last day of each of the first three (3) quarters
of each fiscal year of the Borrower, the balance sheet of the Borrower and the
Restricted Subsidiaries as at the end of such quarter and as of the end of the
preceding fiscal year, and the related statements of operations and the related
statements of cash flows of the Borrower and of the Restricted Subsidiaries for
such quarter and for the elapsed portion of the year ended with the last day of
such period, which shall set forth in comparative form such figures as at the
end of and for such period and appropriate prior period and shall be certified
by the chief financial officer of the Borrower to have been prepared in
accordance with GAAP and to present fairly in all material respects the
financial position of the Borrower and the Restricted Subsidiaries as at the end
of such period and the results of operations for such period, and for the
elapsed portion of the year ended with the
-55-
last day of such period, subject only to normal year-end and audit adjustments
and the absence of footnotes.
Section 6.2 Annual Financial Statements and Information. Within
-------------------------------------------
ninety (90) days after the end of each fiscal year of the Borrower, the audited
balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal
year and the related audited statements of operations for such fiscal year and
for the previous fiscal year, the related audited statements of cash flows and
stockholders' equity for such fiscal year and for the previous fiscal year, all
in reasonable detail, and in each case prepared in accordance with GAAP
throughout the periods involved and shall be certified by independent certified
public accountants of recognized national standing which certification shall (i)
be accompanied by the opinion of such accountants without reservation or
exception as to the scope of their audit, (ii) state that the examination by
such accountants in connection with the financial statements has been made in
accordance with generally accepted auditing standards, (iii) include the opinion
of such accountants that such financial statements have been prepared in
accordance with GAAP, except as otherwise specified in such opinion, (iv)
include an expression of their opinion as to whether the computations by the
Borrower in connection with the certificate delivered pursuant to Section 6.3
hereof show compliance with Sections 7.8, 7.9 and 7.10 hereof; and (v) stating
that, in making the examination necessary for their audit of the financial
statements of the Borrower for such year, nothing came to their attention of a
financial or accounting nature that caused them to believe that the Borrower was
not in compliance with the terms, covenants, provisions or conditions of this
Agreement, or that there shall have occurred any condition or event which would
constitute a Default or, if so, specifying all such instances of non-compliance
and of each condition or event that would constitute a Default and the nature
and status thereof.
Section 6.3 Performance Certificates. At the time the financial
------------------------
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of the
president or chief financial officer of the Borrower as to its financial
performance, in substantially the form attached hereto as Exhibit P:
---------
(a) setting forth as and at the end of such quarterly period or fiscal
year, as the case may be, the arithmetical calculations required to establish
(i) any adjustment to the Applicable Margins, as provided for in Section 2.3(f),
and (ii) whether or not the Borrower was in compliance with the requirements of
Sections 7.8, 7.9 and 7.10 hereof; and
(b) stating that the signer has reviewed the terms of this Agreement
and that in the course of the performance of his
-56-
or her duties, he or she would normally have knowledge of any condition or event
which would constitute a Default and certifying that, to the best of his or her
knowledge, no Default or Event of Default has occurred as at the end of such
quarter or year, as the case may be, or, if a Default or an Event of Default has
occurred, disclosing each such Default or Event of Default and its nature, when
it occurred, whether it is continuing, and the steps being taken by the Borrower
with respect to such Default or Event of Default.
Section 6.4 Copies of Other Reports.
-----------------------
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower by the Borrower's independent public accountants
regarding the Borrower or any Restricted Subsidiary.
(b) Promptly upon receipt thereof, copies of any material adverse
notice or report regarding any Material License.
(c) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the business, assets, liabilities, financial position, projections, results of
operations or business prospects of the Borrower or any of the Restricted
Subsidiaries, as the Administrative Agent may reasonably request.
(d) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year, and
upon reasonable request by the Administrative Agent, copies of any new or
replacement insurance policies obtained during such year.
(e) Any annual budget for the Borrower and the Restricted
Subsidiaries, ordinary forecasts of the income statement, the balance sheet and
a cash flow statement for such year, as may be approved by the Borrower's Board
of Directors.
(f) Promptly after the sending thereof, copies of all statements,
reports and other information which the Borrower or any of the Restricted
Subsidiaries sends to security holders of the Borrower generally or files with
the Securities and Exchange Commission or any national securities exchange.
Section 6.5 Notice of Litigation and Other Matters. Notice
--------------------------------------
specifying the nature and status of any of the following events, promptly, but
in any event not later than fifteen (15) days after the occurrence of any of the
following events becomes known to the Borrower:
-57-
(i) the commencement of all actions, proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator against, the Borrower or
any Restricted Subsidiary, or any of their respective properties, assets or
businesses or any License which could reasonably be expected to have a
Materially Adverse Effect;
(ii) any material adverse change with respect to the business,
assets, liabilities, financial position, results of operations or business
prospects of the Borrower or any Restricted Subsidiary other than changes
in the ordinary course of business which have not had and would not
reasonably be expected to have a Materially Adverse Effect;
(iii) any Default or the occurrence or non-occurrence of any
event (A) which constitutes, or which with the passage of time or giving of
notice or both would constitute a default by the Borrower or any Restricted
Subsidiary under any material agreement other than this Agreement and the
other Loan Documents to which the Borrower or any Restricted Subsidiary is
party or by which any of their respective properties may be bound, and (B)
which could reasonably be expected to have a Materially Adverse Effect,
giving in each case the details thereof and specifying the action proposed
to be taken with respect thereto;
(iv) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section
4975 of the Code) with respect to any Plan of the Borrower or the
institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming
it or the trustee of any such Plan with respect to such Plan or any action
taken by the Borrower or any ERISA Affiliate of the Borrower to withdraw or
partially withdraw from any Plan or to terminate any Plan; and
(v) the occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section
4.1(m) of this Agreement.
-58-
ARTICLE 7
Negative Covenants
------------------
So long as any of the Obligations is outstanding and unpaid or the Banks
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Banks, or such
greater number of Banks as may be expressly provided herein, shall otherwise
give their prior consent in writing:
Section 7.1 Indebtedness for Money Borrowed of the Borrower and its
-------------------------------------------------------
Subsidiaries. The Borrower shall not, and shall not permit any of its
------------
Subsidiaries to, create, assume, incur or otherwise become or remain obligated
in respect of, or permit to be outstanding, any Indebtedness for Money Borrowed
except:
(a) the Obligations;
(b) operating accounts payable, accrued expenses and customer advance
payments incurred in the ordinary course of business and taxes, assessments,
governmental charges or similar claims;
(c) Indebtedness secured by Permitted Liens;
(d) Obligations under Interest Hedge Agreements in respect of the
Loans;
(e) unsecured Indebtedness of the Borrower owed to TCGI which is
subordinated to the Obligations pursuant to the Subordination Agreement dated as
of June 7, 1996, among the Borrower, TCGI and the Administrative Agent.
(f) Indebtedness for Money Borrowed which does not exceed $10,000,000
in the aggregate at any one time outstanding; provided such Indebtedness for
Money Borrowed is (1) purchase money Indebtedness that is incurred or assumed to
finance part or all of (but not more than) the purchase price of a tangible
asset in which neither the Borrower nor such Restricted Subsidiary had at any
time prior to such purchase any interest other than a security interest or an
interest as lessee under an operating lease, (2) Capitalized Lease Obligations,
or (3) reimbursement obligations with respect to letters of credit;
(g) Guaranties by the Borrower or any Restricted Subsidiary of
Indebtedness of any other Restricted Subsidiary and letters of credit and
performance bonds, real estate leases or trade credit for which any Restricted
Subsidiary is the obligor which do not exceed $20,000,000 in the aggregate at
any time outstanding; and
-59-
(h) loans from the Borrower to its Affiliates so long as such loans
are subject to the Assignment of Intercompany Indebtedness.
Section 7.2 Limitation on Liens. The Borrower (to the extent any of
-------------------
the following assets or properties are used in the business or operations of the
Restricted Subsidiaries) shall not, and shall not permit any of the Restricted
Subsidiaries to, create, assume, incur or permit to exist or to be created,
assumed, incurred or permitted to exist, directly or indirectly, any Lien on any
of its properties or assets (including, without limitation, transmitting or
receiving equipment of any type, fiber or any other type of interconnection
media, telephone switches of any type, Licenses, or any contract (whether in the
name of the Borrower or otherwise) pursuant to which the Restricted Subsidiary
provides local competitive access service or any other type of
telecommunications service), used in the business or operations of the
Restricted Subsidiaries whether now owned or hereafter acquired, except for
Permitted Liens, and shall not, after the Agreement Date, undertake, covenant or
agree with any other Person that it will not create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist any first
priority lien by the Administrative Agent (for the benefit of the Banks) on any
of such assets (other than in connection with service arrangements entered into
with customers of the Borrower and the Restricted Subsidiaries in the ordinary
course of business).
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall
--------------------
not permit any of the Restricted Subsidiaries to, enter into any amendment of,
or agree to or accept or consent to any waiver of any of the material provisions
of its articles or certificate of incorporation or partnership agreement, as
appropriate, except as may be required in connection with the acquisition by
Sprint of an ownership interest in TCGI.
Section 7.4 Liquidation, Merger, or Disposition of Assets.
---------------------------------------------
(a) Disposition of Assets. The Borrower shall not, and shall not
---------------------
permit any of the Restricted Subsidiaries to, at any time sell, lease, abandon,
or otherwise dispose of any assets (other than assets disposed of or leased in
the ordinary course of business) without the prior written consent of the
Majority Banks; provided, however, that the prior written consent of the
-------- -------
Majority Banks shall not be required for Permitted Asset Sales.
(b) Liquidation or Merger. The Borrower shall not, and shall not
---------------------
permit any of the Restricted Subsidiaries to, at any time liquidate or dissolve
itself (or suffer any liquidation or dissolution) or otherwise wind up, or enter
into any merger,
-60-
other than (i) a merger or consolidation among the Borrower and one or more
Restricted Subsidiaries, provided the Borrower is the surviving corporation, or
--------
(ii) a merger between or among two or more Restricted Subsidiaries, or (iii) in
connection with an Acquisition permitted hereunder effected by a merger in which
the Borrower or, in a merger in which the Borrower is not a party, its
Subsidiary is the surviving corporation.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and
------------------------
shall not permit any of the Restricted Subsidiaries to, at any time Guaranty,
assume, be obligated with respect to, or permit to be outstanding any Guaranty
of, any obligation of any other Person other than (a) a guaranty by endorsement
of negotiable instruments for collection in the ordinary course of business, (b)
obligations under agreements of the Borrower or any of its Subsidiaries entered
into in connection with leases of real property or the acquisition of services,
supplies and equipment in the ordinary course of business of the Borrower or any
of its Subsidiaries or other Affiliates, (c) Guaranties of Indebtedness incurred
as permitted pursuant to Section 7.1(g) hereof, or (d) as may be contained in
any Loan Document including, without limitation, the Subsidiary Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower shall not,
----------------------------
and shall not permit any of the Restricted Subsidiaries to, directly or
indirectly make any loan or advance, or otherwise acquire for consideration
evidences of Indebtedness, capital stock or other securities of any Person or
other assets or property (other than assets or property (i) acquired in the
ordinary course of business, (ii) received in connection with a capital
contribution from a stockholder or partner or (iii) received in connection with
a Permitted Asset Sale), or make any Acquisition, except that so long as no
Default then exists or would be caused thereby:
(a) The Borrower and the Restricted Subsidiaries may, directly or
through a brokerage account (i) purchase marketable, direct obligations of the
United States of America, its agencies and instrumentalities maturing within
three hundred sixty-five (365) days of the date of purchase, (ii) purchase
commercial paper issued by corporations, each of which shall have a combined net
worth of at least $100 million and each of which conducts a substantial part of
its business in the United States of America, maturing within two hundred
seventy (270) days from the date of the original issue thereof, and rated "P-2"
or better by Xxxxx'x Investors Service, Inc. or "A-2" or better by Standard and
Poor's Corporation, and (iii) purchase repurchase agreements, bankers'
acceptances, and certificates of deposit maturing within three hundred sixty-
five (365) days of the date of purchase which are issued by, or time deposits
maintained with, a United States national or state bank the deposits of which
are insured by the
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Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance
Corporation and having capital, surplus and undivided profits totaling more than
$100 million and rated "A" or better by Xxxxx'x Investors Service, Inc. or
Standard and Poor's Corporation;
(b) Subject to compliance with Section 5.13 hereof (to the extent
applicable), the Borrower or any of its Restricted Subsidiaries may make
Acquisitions;
(c) The Borrower and the Restricted Subsidiaries may make loans and
advances to their employees in the ordinary course of business in an amount not
to exceed $1,000,000 for all such loans; and
(d) The Borrower and the Restricted Subsidiaries may make capital
contributions, loans or advances to Unrestricted Subsidiaries and other
Affiliates, so long as (i) all such loans or advances are subject to the
Assignment of Intercompany Indebtedness and (ii) all equity interests
representing such capital contributions to Restricted Subsidiaries are pledged
to the Administrative Agent as collateral for the Obligations.
Section 7.7 Restricted Payments and Purchases. The Borrower shall
---------------------------------
not, and shall not permit any of the Restricted Subsidiaries to, directly or
indirectly declare or make any Restricted Payment or Restricted Purchase, except
that so long as no Default hereunder then exists or would be caused thereby:
(a) so long as a Restricted Subsidiary is not obligated on any
Indebtedness to the Borrower or a Subsidiary of the Borrower, such
Subsidiary may make distributions to (i) any partner or shareholder of
such Subsidiary holding a minority position with respect to such
Subsidiary, so long as such Subsidiary makes a contemporaneous pro
rata distribution to the Borrower or any of the Restricted
Subsidiaries or (ii) the Borrower or any of the Restricted
Subsidiaries; and
(b) after June 30, 1999, so long as the Leverage Ratio is less
than 5.00 to 1.00 for two (2) consecutive quarters, the Borrower may
make Restricted Payments and Restricted Purchases; provided that the
--------
Borrower provides to the Administrative Agent and the Banks a
certificate signed by an Authorized Signatory of the Borrower
demonstrating compliance with Sections 7.8, 7.9 and 7.10 hereof both
before and after giving effect to such payment and stating that there
does not exist a Default or Event of Default hereunder; and provided,
--------
further, that such Restricted Payments and Restricted Purchases are
-------
not made with any portion of the Net
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Proceeds of any asset sale by the Borrower or any Restricted
Subsidiary required to repay the Loans pursuant to Section 2.7 hereof.
Section 7.8 Fixed Charge Coverage Ratio. The Borrower shall not at
---------------------------
any time after December 31, 1999 permit the Fixed Charge Coverage Ratio to be
less than 1.00:1.00.
Section 7.9 Leverage Ratio. (a) As of the end of any calendar
--------------
quarter, and (b) at the time of any Advance hereunder (after giving effect to
such Advance), the Borrower shall not permit its Leverage Ratio to exceed the
ratios set forth below during the periods indicated:
Period Ratio
------------------------------ ------
Agreement Date through
December 31, 1998 7.00:1
January 1, 1999 through
December 31, 1999 6.00:1
January 1, 2000 through
June 30, 2000 5.50:1
July 1, 2000 through
December 31, 2000 5.00:1
January 1, 2001 through
June 30, 2001 4.50:1
July 1, 2001 through
December 31, 2001 4.00:1
January 1, 2002 and
thereafter 3.00:1
Section 7.10 Annualized Operating Cash Flow to Total Cash Interest
-----------------------------------------------------
Expense. (a) As of the end of any calendar quarter, and (b) at the time of any
-------
Advance hereunder (after giving effect to such Advance), the Borrower shall not
permit the ratio of Annualized Operating Cash Flow to its Total Cash Interest
Expense to be less than the ratios set forth below during the periods indicated:
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Period Ratio
------ -----
Agreement Date through
December 31, 1998 1.35:1
January 1, 1999 and
thereafter 2.00:1
Section 7.11 Affiliate Transactions. Except as specifically provided
----------------------
herein (including, without limitation, Sections 7.4, 7.6 and 7.7 hereof) and as
may be described on Schedule 6 attached hereto, the Borrower shall not, and
----------
shall not permit any of the Restricted Subsidiaries to, at any time engage in
any transaction with an Affiliate, or make an assignment or other transfer of
any of its properties or assets to any Affiliate, on terms less advantageous to
the Borrower or such Restricted Subsidiary than would be the case if such
transaction had been effected with a non-Affiliate.
Section 7.12 Real Estate. Subject to Section 5.11 hereof, the
-----------
Borrower and the Restricted Subsidiaries may purchase real estate solely for use
in the business of the Borrower and the Restricted Subsidiaries.
Section 7.13 ERISA Liabilities. The Borrower shall not, and shall
-----------------
cause each of its ERISA Affiliates not to, permit the assets of any of their
respective Plans to be less than the amount necessary to provide all accrued
benefits under such Plans to the extent that any such failure to maintain
sufficient assets could reasonably be expected to result in a Materially Adverse
Effect.
Section 7.14 Limitation on Upstream Dividends by Restricted
----------------------------------------------
Subsidiaries. The Borrower shall not permit any Restricted Subsidiary to enter
------------
into or agree, or otherwise become subject, to any agreement, contract or other
arrangement with any Person pursuant to the terms of which (a) such Restricted
Subsidiary is or would be prohibited from declaring or paying any cash dividends
or distributions on any class of its stock or any partnership interests owned
directly or indirectly by the Borrower or from making any other distribution on
account of any class of any such stock or any such partnership interests (herein
referred to as "Upstream Dividends") or (b) the declaration or payment of
------------------
Upstream Dividends by a Restricted Subsidiary to the Borrower or to another
Restricted Subsidiary, on an annual or cumulative basis, is or would be
otherwise limited or restricted.
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ARTICLE 8
Default
-------
Section 8.1 Events of Default. Each of the following shall constitute
-----------------
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement or any
other Loan Document shall prove to have been incorrect or misleading in any
material respect as of the time it was made or deemed to be made pursuant to
Section 4.2 hereof;
(b) The Borrower shall default in the payment of: (i) any interest
under any of the Notes or Incremental Facility Notes or fees or other amounts
payable to the Banks and the Administrative Agent under any of the Loan
Documents, or any of them, when due and such Default shall not be cured by
payment in full within five (5) Business Days from the due date; or (ii) any
principal under any of the Notes or Incremental Facility Notes when due;
(c) The Borrower shall default in the performance or observance of any
agreement or covenant contained in: (i) Sections 6.1 or 6.2 hereof and such
default shall not be cured within ten (10) Business Days from the occurrence of
such default; or (ii) Sections 5.2(a), 5.10, 7.1, 7.2, 7.4, 7.5, 7.6, 7.7, 7.8,
7.9, 7.10, 7.11 or 7.13 hereof;
(d) The Borrower shall default in the performance or observance of any
other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such default shall not be cured
within a period of thirty (30) days from the occurrence of such default;
(e) There shall occur any default in the performance or observance of
any agreement or covenant or breach in any material respect of any
representation or warranty contained in any of the Loan Documents (other than
this Agreement or as otherwise provided in Section 8.1 of this Agreement) by the
Borrower, any of its Restricted Subsidiaries, or any other obligor thereunder,
which shall not be cured within a period of thirty (30) days from the occurrence
of such default;
(f) There shall be entered and remain unstayed a decree or order for
relief in respect of the Borrower or any of the Restricted Subsidiaries under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other
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applicable Federal or state bankruptcy law or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official of the Borrower or any of the Restricted Subsidiaries, or of any
substantial part of their respective properties, or ordering the winding-up or
liquidation of the affairs of the Borrower, or any of the Restricted
Subsidiaries; or an involuntary petition shall be filed against the Borrower or
any of the Restricted Subsidiaries, and a temporary stay entered, and (i) such
petition and stay shall not be diligently contested, or (ii) any such petition
and stay shall continue undismissed for a period of sixty (60) consecutive days;
(g) The Borrower or any of the Restricted Subsidiaries shall file a
petition, answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable Federal
or state bankruptcy law or other similar law, or the Borrower or any of the
Restricted Subsidiaries shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or taking
of possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Borrower or any of the Restricted
Subsidiaries or of any substantial part of their respective properties, or the
Borrower or any of the Restricted Subsidiaries shall fail generally to pay their
respective debts as they become due or shall be adjudicated insolvent; the
Borrower shall suspend or discontinue its business; the Borrower or any of the
Restricted Subsidiaries shall have concealed, removed any of its property with
the intent to hinder or defraud its creditors or shall have made a fraudulent or
preferential transfer under any applicable fraudulent conveyance or bankruptcy
law, or the Borrower or any of the Restricted Subsidiaries shall take any action
in furtherance of any such action;
(h) A judgment not covered by insurance (subject to applicable
deductibles) shall be entered by any court against the Borrower or any of the
Restricted Subsidiaries for the payment of money which exceeds singly or in the
aggregate with other such judgments, $5,000,000, or a warrant of attachment or
execution or similar process shall be issued or levied against property of the
Borrower or any of the Restricted Subsidiaries which, together with all other
such property of the Borrower or any of the Restricted Subsidiaries subject to
other such process, exceeds in value $5,000,000 in the aggregate, if, in any
such case, within thirty (30) days after the entry, issue or levy thereof, such
judgment, warrant or process shall not have been paid or discharged or stayed
pending appeal or removed to bond, or if, after the expiration of any such stay,
such judgment, warrant or process shall not have been paid or discharged or
removed to bond;
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(i) There shall be at any time any "accumulated funding deficiency,"
as defined in ERISA or in Section 412 of the Code, with respect to any Plan
maintained by the Borrower or any ERISA Affiliate, or to which the Borrower or
any ERISA Affiliate has any liabilities, or any trust created thereunder to the
extent that such accumulated funding deficiency would have a Materially Adverse
Effect; or, with respect to any Plan (other than a Multiemployer Plan), a
trustee shall be appointed by a United States District Court to administer any
such Plan; PBGC shall institute proceedings to terminate any such Plan, or the
Borrower or any ERISA Affiliate shall incur any liability to the PBGC in
connection with any such Plan; or, with respect to any Plan that is a
Multiemployer Plan, a trustee shall be appointed by a United States District
Court to administer any such Multiemployer Plan to the extent that such
appointment could reasonably be expected to have a Materially Adverse Effect;
PBGC shall institute proceedings to terminate any such Multiemployer Plan to the
extent that the institution of such proceedings could reasonably be expected to
have a Materially Adverse Effect; or the Borrower or any ERISA Affiliate shall
incur any liability to PBGC in connection with the termination of any such Plan
which liability could reasonably be expected to have a Materially Adverse
Effect; or the Borrower or any ERISA Affiliate shall engage in a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) which would subject the Borrower or any ERISA Affiliate to any
material tax or penalty on "prohibited transactions" imposed by Section 502 of
ERISA or Section 4975 of the Code;
(j) There shall occur (i) any acceleration of the maturity of any
Indebtedness for Money Borrowed of the Borrower or any of the Restricted
Subsidiaries in an aggregate principal amount exceeding $5,000,000; (ii) any
event which would permit (A) such acceleration or (B) the holder of such
Indebtedness for Money Borrowed to require the purchase or redemption of such
Indebtedness for Money Borrowed and which event has not been cured within any
applicable cure period or waived in writing prior to any declaration of an Event
of Default or acceleration of the Loans hereunder; or (iii) any material default
under any Interest Hedge Agreements which would permit the obligation of the
Borrower or any of the Restricted Subsidiaries to make payments to the
counterparties thereunder in an amount exceeding $5,000,000 in aggregate to be
then due and payable;
(k) The FCC shall deliver to the Borrower or any of its Restricted
Subsidiaries an order to show cause why an order of revocation should not be
issued based upon any alleged attribution of alien ownership (within the meaning
of 47 U.S.C. (S) 310(b) and any interpretation of the FCC thereunder) to the
Borrower or any of its Restricted Subsidiaries and (i) such order shall not have
been rescinded within thirty (30) days after such
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delivery or (ii) in the reasonable judgment of the Majority Banks, proceedings
by or before the FCC related to such order are reasonably likely to result in
one or more orders of revocation and would constitute an Event of Default under
Section 8.1(m) hereof;
(l) Any Loan Document or any material provision thereof, shall at any
time and for any reason be declared by a court of competent jurisdiction to be
null and void, or a proceeding shall be commenced by the Borrower or any of its
Subsidiaries or by any governmental authority having jurisdiction over the
Borrower or any of its Subsidiaries seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Borrower or any of the Restricted Subsidiaries shall
deny that it has any liability or obligation for the payment of principal or
interest purported to be created under any Loan Document;
(m) One or more Material Licenses shall be terminated or revoked or
any such Material License shall fail to be renewed at the stated expiration
thereof without obtaining a replacement License to the extent required for the
continued unimpaired conduct of the applicable business;
(n) Any Security Document shall for any reason, fail or cease (except
by reason of lapse of time) to create a valid and perfected and first-priority
Lien on or Security Interest in any portion of the Collateral purported to be
covered thereby and such failure shall not be cured within thirty (30) days from
delivery of notice of such failure to the Borrower by the Administrative Agent;
(o) There shall occur any Change of Control; or
(p) There shall occur any default in payment of any sums due under any
Indebtedness for Money Borrowed of TCGI in excess of $50,000,000, or the holders
of such Indebtedness for Money Borrowed shall elect to accelerate (or otherwise
demand payment in full) the obligations thereunder.
Section 8.2 Remedies.
--------
(a) If an Event of Default specified in Section 8.1 (other than an
Event of Default under Section 8.1(f) or Section 8.1(g)) shall have occurred and
shall be continuing, the Administrative Agent, at the request of the Majority
Banks subject to Section 9.7(a) hereof, shall (i) terminate the Commitment and
the Incremental Facility Commitment, and/or (ii) declare all or a portion of the
principal of and interest on the Loans and the Notes and the Incremental
Facility Notes and all other amounts owed to the Banks and the Administrative
Agent
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under this Agreement, the Notes and any other Loan Documents to be forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, anything in this Agreement, the Notes
or any other Loan Document to the contrary notwithstanding, and the Commitment
and the Incremental Facility Commitment shall thereupon forthwith terminate.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or Section 8.1(g), all principal, interest and other
amounts due hereunder and under the Notes and the Incremental Facility Notes,
and all other Obligations, shall thereupon and concurrently therewith become due
and payable and the Commitment and the Incremental Facility Commitment shall
forthwith terminate and the principal amount of the Loans outstanding hereunder
shall bear interest at the Default Rate, all without any action by the
Administrative Agent or the Banks or the Majority Banks or any of them and
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or in the other Loan Documents
to the contrary notwithstanding.
(c) Upon acceleration of the Loans, as provided in subsection (a) or
(b) of this Section 8.2, above, the Administrative Agent and the Banks shall
have all of the post-default rights granted to them, or any of them, as
applicable under the Loan Documents and under Applicable Law.
(d) Notwithstanding anything in this Agreement or in any of the Loan
Documents to the contrary, the Administrative Agent's and the Banks' remedies
hereunder and under the Loan Documents are subject to compliance with the
Communications Act, to all applicable rules, regulations and policies of the
FCC, to the Licenses and the Necessary Authorizations and to applicable statutes
governing, and the rules and regulations of, issuers of the Licenses and
Necessary Authorizations, and the Administrative Agent and the Banks will not
take any action pursuant to this Agreement and any of the Loan Documents that
will constitute or result in any assignment of a License or Necessary
Authorization or any change of control of the Borrower or any of its
Subsidiaries or any transfer of any shares of or partnership interests in the
Borrower or any of its Subsidiaries if such assignment of License or Necessary
Authorization or change of control or transfers of shares or partnership
interests would require under then existing law (including the written rules and
regulations promulgated by the FCC and the issuers of the Licenses and Necessary
Authorizations), the prior approval of the FCC or such other issuers, without
first obtaining such approval of the FCC and such other issuers. This
Agreement, the Loan Documents and the transactions contemplated hereby and
thereby do not and will not constitute, create, or have the effect of
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constituting or creating, directly or indirectly, actual or practical ownership
of the Borrower or any of its Subsidiaries by the Administrative Agent or the
Banks or control, affirmative or negative, direct or indirect, of the Borrower
or any of its Subsidiaries by the Administrative Agent or the Banks, over the
management or any other aspect of the operation of the Borrower or any of its
Subsidiaries, which ownership and control remain exclusively and at all times in
the Borrower and its shareholders until such time as the Administrative Agent
and the Banks have complied with such law, rules, regulations and policies.
(e) Upon acceleration of the Loans, as provided in subsection (a) or
(b) of this Section 8.2, the Administrative Agent, upon request of the Majority
Banks, shall subject to compliance with Applicable Law have the right to the
appointment of a receiver for the properties and assets of the Borrower and its
Restricted Subsidiaries, and the Borrower, for itself and on behalf of its
Restricted Subsidiaries, hereby consents to such rights and such appointment and
hereby waives any objection the Borrower or any Restricted Subsidiary may have
thereto or the right to have a bond or other security posted by the
Administrative Agent, on behalf of the Banks, in connection therewith. The
rights of the Administrative Agent under this Section 8.2(e) shall be subject to
its prior compliance with the Communications Act and the FCC rules and policies
promulgated thereunder and the terms and conditions of the Licenses, and the
applicable statutes governing, and the rules and regulations of, issuers of the
Licenses and the Necessary Authorizations to the extent applicable to the
exercise of such rights.
(f) The rights and remedies of the Administrative Agent and the Banks
hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
------------------------------------------------------
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to any of the Administrative Agent and
the Banks or otherwise received by any of such Persons (from realization on
Collateral for the Obligations or otherwise) shall be paid over to the
Administrative Agent (if necessary) and distributed by the Administrative Agent
as follows: first, to the Administrative Agent's reasonable costs and expenses,
-----
if any, incurred in connection with the collection of such payment or
prepayment, including, without limitation, any reasonable costs incurred by it
in connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c); second, to the Banks or the
------
Administrative Agent for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to the Banks, pro rata on the basis of
-----
their respective unpaid principal amounts (except as provided in
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Section 2.2(e) hereof), for the payment of any unpaid interest which may have
accrued on the Obligations; fourth, to the Banks pro rata until all Loans have
------
been paid in full (and, for purposes of this clause, obligations under Interest
Hedge Agreements with the Banks or any of them shall be paid on a pro rata basis
with the Loans); fifth, to the Banks pro rata on the basis of their respective
-----
unpaid amounts, to the payment of any other unpaid Obligations; and sixth, to
-----
the Borrower or as otherwise required by law.
ARTICLE 9
The Agents
----------
Section 9.1 Appointment and Authorization. Each Bank hereby irrevocably
-----------------------------
appoints and authorizes, and hereby agrees that it will require any transferee
of any of its interest in its portion of the Loans and in its Note irrevocably
to appoint and authorize, the Administrative Agent and the Documentation Agent
to take such actions as its agents on its behalf and to exercise such powers
hereunder and under the other Loan Documents as are delegated by the terms
hereof and thereof, together with such powers as are reasonably incidental
thereto. Neither the Administrative Agent nor the Documentation Agent, nor any
of their respective directors, officers, employees or agents, shall be liable
for any action taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence or willful
misconduct as determined by a final, non-appealable judicial order of a court of
competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat each
----------------
Bank, or the Person designated in the last notice filed with the Administrative
Agent, as the holder of all of the interests of such Bank in its portion of the
Loans and in its Note until written notice of transfer, signed by such Bank (or
the Person designated in the last notice filed with the Administrative Agent)
and by the Person designated in such written notice of transfer, in form and
substance satisfactory to the Administrative Agent, shall have been filed with
the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent and the
-------------------------
Documentation Agent may consult with Powell, Goldstein, Xxxxxx & Xxxxxx,
Atlanta, Georgia, special counsel to the Administrative Agent and the
Documentation Agent, or with other legal counsel selected by them and shall not
be liable for any action taken or suffered by them in good faith in consultation
with the Majority Banks and in reasonable reliance on such consultations.
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Section 9.4 Documents. The Administrative Agent and the Documentation
---------
Agent shall be under no duty to examine, inquire into, or pass upon the
validity, effectiveness or genuineness of this Agreement, any Note, any other
Loan Document, or any instrument, document or communication furnished pursuant
hereto or in connection herewith, and the Administrative Agent and the
Documentation Agent shall be entitled to assume that they are valid, effective
and genuine, have been signed or sent by the proper parties and are what they
purport to be.
Section 9.5 Administrative Agent, the Documentation Agent and Affiliates.
------------------------------------------------------------
With respect to the Commitment, the Incremental Facility Commitment and the
Loans, the Administrative Agent and the Documentation Agent shall have the same
rights and powers hereunder as any other Bank and the Administrative Agent and
the Documentation Agent and Affiliates of each may accept deposits from, lend
money to and generally engage in any kind of business with the Borrower, any of
its Subsidiaries or any Affiliates of, or Persons doing business with, the
Borrower, as if they were not affiliated with the Administrative Agent and the
Documentation Agent and without any obligation to account therefor. The
foregoing sentence shall apply with equal force to the Administrative Agent and
the Documentation Agent.
Section 9.6 Responsibility of the Administrative Agent. The duties and
------------------------------------------
obligations of the Administrative Agent under this Agreement are only those
expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower, of such fact, or has been notified by a Bank in writing that such
Bank considers that a Default or an Event of Default has occurred and is
continuing, and such Bank shall specify in detail the nature thereof in writing.
The Administrative Agent shall not be liable hereunder for any action taken or
omitted to be taken except for its own gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction. The Administrative Agent shall provide each Bank with copies of
such documents received from the Borrower or any of the Restricted Subsidiaries
as such Bank may reasonably request. The Administrative Agent is hereby
authorized to act on behalf of the Banks, in its own capacity and through other
agents and sub-agents appointed by it, under the Security Documents, provided
that the Administrative Agent shall not agree to the release of any Collateral,
or any property encumbered by any mortgage, pledge or security interest, except
in compliance with Section 11.12 hereof.
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Section 9.7 Action by the Administrative Agent.
----------------------------------
(a) The Administrative Agent shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights which may be
vested in it by, and with respect to taking or refraining from taking any action
or actions which it may be able to take under or in respect of, this Agreement,
unless the Administrative Agent shall have been instructed by the Majority Banks
to exercise or refrain from exercising such rights or to take or refrain from
taking such action; provided that the Administrative Agent shall not exercise
--------
any rights under Section 8.2(a) of this Agreement without the request of the
Majority Banks (or, where expressly required, all the Banks) unless time is of
the essence, in which case, such action can be taken. The Administrative Agent
shall incur no liability under or in respect of this Agreement with respect to
anything which it may do or refrain from doing in the reasonable exercise of its
judgment or which may seem to it to be necessary or desirable in the
circumstances, except for its gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court having
jurisdiction over the subject matter.
(b) The Administrative Agent shall not be liable to the Banks or to
any Bank or the Borrower or any of its Subsidiaries in acting or refraining from
acting under this Agreement or any other Loan Document in accordance with the
instructions of the Majority Banks (or, where expressly required, all the
Banks), and any action taken or failure to act pursuant to such instructions
shall be binding on all Banks. The Administrative Agent shall not be obligated
to take any action which is contrary to law or which would in its reasonable
opinion subject it to liability.
Section 9.8 Notice of Default or Event of Default. In the event that the
-------------------------------------
Administrative Agent or any Bank shall acquire actual knowledge, or shall have
been notified, of any Default or Event of Default, the Administrative Agent or
such Bank shall promptly notify the Banks and the Administrative Agent (provided
failure to give such notice shall not result in any liability on the part of
such Bank or Administrative Agent), and the Administrative Agent shall take such
action and assert such rights under this Agreement and the other Loan Documents
as the Majority Banks shall request in writing, and the Administrative Agent
shall not be subject to any liability by reason of its acting pursuant to any
such request. If the Majority Banks shall fail to request the Administrative
Agent to take action or to assert rights under this Agreement or any other Loan
Documents in respect of any Default or Event of Default within ten (10) days
after their receipt of the notice of any Default or Event of Default from the
Administrative Agent or any Bank, or shall
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request inconsistent action with respect to such Default or Event of Default,
the Administrative Agent may, but shall not be required to, take such action and
assert such rights (other than rights under Article 8 hereof) as it deems in its
discretion to be advisable for the protection of the Banks, except that, if the
Majority Banks have instructed the Administrative Agent not to take such action
or assert such right, in no event shall the Administrative Agent act contrary to
such instructions unless time is of the essence, in which case, the
Administrative Agent may act in accordance with its reasonable discretion.
Section 9.9 Responsibility Disclaimed. Neither the Administrative Agent
-------------------------
nor the Documentation Agent shall be under any liability or responsibility
whatsoever as Administrative Agent or Documentation Agent:
(a) To the Borrower or any other Person as a consequence of any
failure or delay in performance by or any breach by, any Bank or Banks (other
than itself) of any of its or their obligations under this Agreement;
(b) To any Bank or Banks, as a consequence of any failure or delay in
performance by, or any breach by, (i) the Borrower of any of its obligations
under this Agreement or the Notes or any other Loan Document, or (ii) any
Restricted Subsidiary or any other obligor under any other Loan Document;
(c) To any Bank or Banks, for any statements, representations or
warranties in this Agreement, or any other document contemplated by this
Agreement or any information provided pursuant to this Agreement, any other Loan
Document, or any other document contemplated by this Agreement, or for the
validity, effectiveness, enforceability or sufficiency of this Agreement, the
Notes, any other Loan Document, or any other document contemplated by this
Agreement; or
(d) To any Person for any act or omission other than that arising from
gross negligence or willful misconduct of such Administrative Agent or the
Documentation Agent, as the case may be as determined by a final, non-appealable
judicial order of a court of competent jurisdiction.
Section 9.10 Indemnification. The Banks agree to indemnify the
---------------
Administrative Agent and the Documentation Agent (to the extent not reimbursed
by the Borrower) pro rata according to their respective Commitment Ratios and
the Incremental Facility Commitment Ratios (in each case, as of the date of the
request for indemnification hereunder) and obligations under Interest Hedge
Agreements (as of the date of the request for indemnification) to the extent
such obligations constitute Obligations, from and against any and all
liabilities,
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obligations, losses (other than the loss of principal and interest hereunder in
the event of a bankruptcy or out-of-court `work-out' of the Loans), damages,
penalties, actions, judgments, suits, costs, expenses (including reasonable fees
and expenses of experts, agents, consultants and counsel), or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent and/or the Documentation Agent in any way
relating to or arising out of this Agreement, any other Loan Document, or any
other document contemplated by this Agreement or any other Loan Document or any
action taken or omitted by the Administrative Agent or the Documentation Agent
under this Agreement, any other Loan Document, or any other document
contemplated by this Agreement, except that no Bank shall be liable to the
Administrative Agent or the Documentation Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Documentation Agent as determined
by a final, non-appealable judicial order of a court having jurisdiction over
the subject matter. The foregoing sentence shall also apply to each of the
Administrative Agent or the Documentation Agent.
Section 9.11 Credit Decision. Each Bank represents and warrants to each
---------------
other and to the Administrative Agent and the Documentation Agent that:
(a) In making its decision to enter into this Agreement and to make
its portion of the Loans it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower and
that it has made an independent credit judgment, and that it has not relied upon
the Administrative Agent or the Documentation Agent or information provided by
the Administrative Agent or the Documentation Agent (other than information
provided to the Administrative Agent or the Documentation Agent by the Borrower
and forwarded by the Administrative Agent or the Documentation Agent to the
Banks); and
(b) So long as any portion of the Loans remains outstanding or such
Bank has an obligation to make its portion of Advances hereunder, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrower.
Section 9.12 Successor Administrative Agent and Documentation Agent.
------------------------------------------------------
Subject to the appointment and acceptance of a successor Administrative Agent or
Documentation Agent as provided below, the Administrative Agent or the
Documentation Agent may resign at any time by giving written notice thereof to
the Banks and the Borrower and may be removed at any time for
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cause by the Majority Banks. Upon any such resignation or removal, the Majority
Banks shall have the right to appoint a successor Administrative Agent or
Documentation Agent, as the case may be, which appointment shall, prior to a
Default, be subject to the consent of the Borrower, acting reasonably. If no
successor Administrative Agent or Documentation Agent shall have been so
appointed by the Majority Banks (and with the consent of the Borrower to the
extent required in the preceding sentence) and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent or
Documentation Agent gave notice of resignation or the Majority Banks removed the
retiring Administrative Agent or Documentation Agent, then the retiring
Administrative Agent or Documentation Agent may, on behalf of the Banks, appoint
a successor Administrative Agent or Documentation Agent which shall be any Bank
or a commercial bank organized under the laws of the United States of America or
any political subdivision thereof which has combined capital and reserves in
excess of $500,000,000. Upon the acceptance of any appointment as
Administrative Agent or Documentation Agent hereunder by a successor
Administrative Agent or Documentation Agent, such successor Administrative Agent
or Documentation Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, duties and obligations of the retiring
Administrative Agent or Documentation Agent and the retiring Administrative
Agent or Documentation Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's or Documentation Agent's resignation or removal hereunder as
Administrative Agent or Documentation Agent the provisions of this Article shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent or Documentation
Agent. In the event that any of the Documentation Agent, or the Administrative
Agent or any of their respective affiliates ceases to be a Bank hereunder, such
Person shall resign its agency hereunder.
Section 9.13 Delegation of Duties. The Administrative Agent or the
--------------------
Documentation Agent may execute any of its duties under the Loan Documents by or
through agents or attorneys selected by it using reasonable care, and shall be
entitled to advice of counsel concerning all matters pertaining to such duties.
ARTICLE 10
Change in Circumstances
Affecting LIBOR Advances
------------------------
Section 10.1 LIBOR Basis Determination Inadequate. If with respect to any
------------------------------------
proposed LIBOR Advance for any Interest Period,
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the Administrative Agent determines after consultation with the Banks that
deposits in United States dollars (in the applicable amount) are not being
offered to any of the Banks in the relevant market for such Interest Period, the
Administrative Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Bank to make its portion of such type of LIBOR Advances shall be
suspended. The Administrative Agent shall promptly notify the Borrower after
the Administrative Agent becomes aware that circumstances set forth in the
preceding sentence no longer exist.
Section 10.2 Illegality. If after the date hereof, the adoption of any
----------
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful for any
Bank to make, maintain or fund its portion of LIBOR Advances, such Bank shall so
notify the Administrative Agent, and the Administrative Agent shall forthwith
give notice thereof to the other Banks and the Borrower. Before giving any
notice to the Administrative Agent pursuant to this Section 10.2, such Bank
shall designate a different lending office if such designation will avoid the
need for giving such notice and will not, in the reasonable judgment of such
Bank, be otherwise materially disadvantageous to such Bank. Upon receipt of
such notice, notwithstanding anything contained in Article 2 hereof, the then
outstanding principal amount of such Bank's portion of each affected LIBOR
Advance, together with accrued interest thereon, shall automatically be
converted to a Base Rate Advance on either (a) the last day of the then current
Interest Period applicable to such affected LIBOR Advances if such Bank may
lawfully continue to maintain and fund its portion of such LIBOR Advance to such
day or (b) immediately if such Bank may not lawfully continue to fund and
maintain its portion of such affected LIBOR Advances to such day.
Section 10.3 Increased Costs.
---------------
(a) If after the date hereof, the adoption of any Applicable Law, or
any change in any Applicable Law (whether adopted before or after the Agreement
Date), or any interpretation or change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by any Bank with
any directive (whether or not
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having the force of law) of any such authority, central bank or comparable
agency:
(1) shall subject any Bank to any tax, duty or other charge with
respect to its obligation to make its portion of LIBOR Advances, or its
portion of existing LIBOR Advances, or shall change the basis of taxation
of payments to any Bank of the principal of or interest on its portion of
LIBOR Advances or in respect of any other amounts due under this Agreement
in respect of its portion of LIBOR Advances or its obligation to make its
portion of LIBOR Advances (except for changes in the rate or method of
calculation of tax on the overall net income of such Bank); or
(2) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, but excluding any included in an applicable
LIBOR Reserve Percentage), special deposit, capital adequacy, assessment or
other requirement or condition against assets of, deposits with or for the
account of, or commitments or credit extended by, any Bank or shall impose
on any Bank or the London interbank borrowing market any other condition
affecting its obligation to make its portion of such LIBOR Advances or its
portion of existing LIBOR Advances;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Bank under this Agreement or
under its Note with respect thereto, then, the Borrower agrees to pay to such
Bank such additional amount or amounts as will compensate such Bank for such
increased costs. Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation pursuant to this
Section 10.3 and will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the reasonable judgment of such Bank made in good faith, be otherwise
disadvantageous to such Bank. Any Bank claiming compensation under this Section
10.3 shall notify the Borrower of any event occurring after the date of this
Agreement entitling such Bank to such compensation as promptly as practicable;
provided that if such Bank fails to give such notice within forty-five (45) days
--------
after it obtains actual knowledge of such an event, such Bank shall, with
respect to such compensation in respect of any costs resulting from such event,
only be entitled to payment under this Section 10.3 for costs incurred from and
after the date forty-five (45) days prior to the date that such Bank does give
such notice.
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(b) Any Bank claiming compensation under this Section 10.3 shall
provide the Borrower with a written certificate setting forth the additional
amount or amounts to be paid to it hereunder and calculations therefor in
reasonable detail. Such certificate shall be presumptively correct absent
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods. If any Bank demands compensation under this
Section 10.3, the Borrower may at any time, upon at least five (5) Business
Days' prior notice to such Bank, prepay in full such Bank's portion of the then
outstanding LIBOR Advances, together with accrued interest thereon to the date
of prepayment, along with any reimbursement required under Section 2.10 hereof.
Concurrently with prepaying such portion of LIBOR Advances the Borrower may
borrow a Base Rate Advance, or a LIBOR Advance not so affected, from such Bank,
and such Bank shall, if so requested, make such Advance in an amount such that
the outstanding principal amount of the affected Note or Notes held by such Bank
shall equal the outstanding principal amount of such Note or Notes immediately
prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given pursuant
------------------------
to Section 10.1, 10.2 or 10.3 suspending the obligation of any Bank to make its
portion of any type of LIBOR Advance, or requiring such Bank's portion of LIBOR
Advances to be repaid or prepaid, then, unless and until such Bank notifies the
Borrower that the circumstances giving rise to such repayment no longer apply,
all amounts which would otherwise be made by such Bank as its portion of LIBOR
Advances shall, unless otherwise notified by the Borrower, be made instead as
Base Rate Advances.
Section 10.5 Claims for Increased Costs and Taxes. In the event that any
------------------------------------
Bank shall decline to make LIBOR Advances pursuant to Section 10.1 or 10.2
hereof or shall have notified the Borrower that it is entitled to claim
compensation pursuant to Section 2.10, 2.12 or 10.3 hereof or is unable to
complete the form required or subject to withholding as provided in Section 2.13
hereof (each such Bank being an "Affected Bank"), the Borrower may designate a
-------------
replacement bank (a "Replacement Bank") to assume the Commitment (and/or
----------------
Incremental Facility Commitment) and the obligations of any such Affected Bank
hereunder, and to purchase the outstanding Note (and/or Incremental Facility
Commitment) of such Affected Bank and such Affected Bank's rights hereunder and
with respect thereto, without recourse upon, or warranty by, or expense to, such
Affected Bank, for a purchase price equal to the outstanding principal amount of
the Loans of such Affected Bank plus all interest accrued and unpaid thereon and
all other amounts owing to such Affected Bank hereunder, including without
limitation, any amount which would be payable to such Affected Bank pursuant to
Section 2.10, and upon such assumption and purchase by the Replacement Bank,
such Replacement
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Bank shall be deemed to be a "Bank" for purposes of this Agreement and such
Affected Bank shall cease to be a "Bank" for purposes of this Agreement and
shall no longer have any obligations or rights hereunder (other than any
obligations or rights which according to this Agreement shall survive the
termination of the Commitment). In the event any Bank receives a refund with
respect to withholding taxes paid by the Borrower, such Bank shall promptly
repay such amounts to the Borrower.
ARTICLE 11
Miscellaneous
-------------
Section 11.1 Notices.
-------
(a) Except as otherwise expressly provided herein, all notices and
other communications under this Agreement and the other Loan Documents (unless
otherwise specifically stated therein) shall be in writing and shall be deemed
to have been given three (3) Business Days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, or one (1)
Business Day after being entrusted to a reputable commercial overnight delivery
service for next day delivery, or when sent on a Business Day prior to 5:00 p.m.
(New York time) or, if later, the next Business Day, by telecopy addressed to
the party to which such notice is directed at its address determined as provided
in this Section 11.1. All notices and other communications under this Agreement
shall be given to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
TCG New York, Inc.
c/o Teleport Communications Group Inc.
Princeton Technology Center
000 Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
With copies to:
Teleport Communications Group Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
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And:
Dow, Xxxxxx & Xxxxxxxxx PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxx X. Xxxx, Esq.
-------------------------------
Telecopy No.: (000) 000-0000
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Manager, Agency
Telecopy No.: (000) 000-0000
With a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
Sixteenth Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) If to the Documentation Agent, to it at:
The Chase Manhattan Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxx, Vice President
Telecopy No.: (000) 000-0000
With copies to:
Powell, Goldstein, Xxxxxx & Xxxxxx
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
Toronto Dominion (Texas), Inc.
c/o The Toronto-Dominion Bank
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Manager, Agency
Telecopy No.: (000) 000-0000
-00-
Xxx Xxxxxxx-Xxxxxxxx Bank
USA Division
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Communications Finance Group
Telecopy No.: (000) 000-0000
(iv) If to the Banks, to them at the addresses set forth beside their
names on the signature pages hereof.
Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof and the failure to provide such copies shall
not affect the validity of the notice given to the primary recipient.
(b) Any party hereto may change the address to which notices shall be
directed under this Section 11.1 by giving ten (10) days' written notice of such
change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
--------
(a) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, and the transactions contemplated
hereunder and thereunder and the making of the initial Advance hereunder
(whether or not such Advance is made), including, but not limited to, the
reasonable fees and disbursements of Powell, Goldstein, Xxxxxx & Xxxxxx, special
counsel for the Administrative Agent and the Documentation Agent;
(b) all reasonable out-of-pocket expenses of the Administrative Agent
and the Documentation Agent in connection with the restructuring and "work out"
of the transactions contemplated in this Agreement or the other Loan Documents,
and the preparation, negotiation, execution and delivery of any waiver,
amendment or consent by the Administrative Agent or the Documentation Agent and
the Banks, or any of them, relating to this Agreement or the other Loan
Documents, including, but not limited to, the reasonable fees and disbursements
of any experts, agents or consultants and of a single law firm acting as special
counsel for the Administrative Agent and the Documentation Agent; and
(c) all out-of-pocket costs and expenses of enforcement under this
Agreement or the other Loan Documents and all out-of-pocket costs and expenses
of collection if an Event of Default occurs in the payment of the Loans, which
in each case
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shall include reasonable fees and out-of-pocket expenses of respective counsel
for, or allocated costs of in-house counsel of, the Administrative Agent and the
Documentation Agent and the Banks.
Section 11.3 Waivers. The rights and remedies of the Administrative Agent,
-------
the Documentation Agent and the Banks under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent, the
Documentation Agent, the Majority Banks, or the Banks, or any of them, in
exercising any right, shall operate as a waiver of such right. The
Administrative Agent, the Documentation Agent and the Banks expressly reserve
the right to require strict compliance with the terms of this Agreement in
connection with any future funding of a Request for Advance. In the event the
Banks decide to fund a Request for Advance at a time when the Borrower is not in
strict compliance with the terms of this Agreement, such decision by the Banks
shall not be deemed to constitute an undertaking by the Banks to fund any
further Request for Advance or preclude the Banks, the Documentation Agent or
the Administrative Agent from exercising any rights available under the Loan
Documents or at law or equity. Any waiver or indulgence granted by the
Administrative Agent, the Documentation Agent, the Banks, or the Majority Banks,
shall not constitute a modification of this Agreement or any other Loan
Document, except to the extent expressly provided in such waiver or indulgence,
or constitute a course of dealing at variance with the terms of this Agreement
or any other Loan Document such as to require further notice of their intent to
require strict adherence to the terms of this Agreement or any other Loan
Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter granted
-------
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, each of
the Administrative Agent or the Documentation Agent, and each of the Banks are
hereby authorized by the Borrower at any time or from time to time, without
notice to the Borrower or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, time or demand, including, but not limited to,
Indebtedness evidenced by certificates of deposit, in each case whether matured
or unmatured) and any other Indebtedness at any time held or owing by any Bank
or Administrative Agent or the Documentation Agent, to or for the credit or the
account of the Borrower or any of its Restricted Subsidiaries, against and on
account of the obligations and liabilities of the Borrower to the Banks and the
Administrative Agent or the Documentation Agent, including, but not limited to,
all Obligations and any other
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claims of any nature or description arising out of or connected with this
Agreement, the Notes or any other Loan Document, irrespective of whether (a) any
Bank or Administrative Agent or the Documentation Agent shall have made any
demand hereunder or (b) any Bank or Administrative Agent or the Documentation
Agent shall have declared the principal of and interest on the Loans and other
amounts due hereunder to be due and payable as permitted by Section 8.2 and
although such obligations and liabilities or any of them shall be contingent or
unmatured. Upon direction by the Administrative Agent, with the consent of the
Banks, each Bank holding deposits of the Borrower or any of its Restricted
Subsidiaries shall exercise its set-off rights as so directed; and, within one
(1) Business Day following any such setoff, the Administrative Agent shall give
notice thereof to the Borrower.
Section 11.5 Assignment.
----------
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder, under the Notes or under any other Loan Document without
the prior written consent of each Bank.
(b) Each Bank may sell assignments or participations of one hundred
percent (100%) (or, with the consent of the Borrower not to be unreasonably
withheld or delayed, a smaller percentage) of its Commitment and Incremental
Facility Commitment or Loans hereunder to (A) one or more wholly-owned
Affiliates of such Bank (provided that, if such Affiliate is not a financial
institution, such Bank shall be obligated to repurchase such assignment if such
Affiliate is unable to honor its obligations hereunder), or (B) any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank (no such assignment referred to in this clause (B)
shall relieve such Bank from its obligations hereunder).
(c) Each of the Banks may at any time enter into assignment agreements
or participations with one or more other banks or other financial institutions
pursuant to which each Bank may assign or participate its interest under this
Agreement and the other Loan Documents, including, its interest in any
particular Advance or portion thereof, provided, that (1) all assignments (other
--------
than assignments described in clause (b) hereof) shall be in minimum principal
amounts of $5,000,000, and (2) all assignments and participations (other than
assignments and participations described in clause (b) hereof) hereunder shall
be subject to the following additional terms and conditions to the extent
expressly applicable thereto:
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(i) No assignment shall be sold without the prior consent of the
Administrative Agent and, so long as a Default has not occurred and is
continuing, the Borrower, which consents shall not be unreasonably withheld
or delayed;
(ii) Any Person purchasing a participation or an assignment of
any portion of the Loans from any Bank shall be required to represent and
warrant that its purchase shall not constitute a "prohibited transaction"
(as defined in Section 4.1(m) hereof);
(iii) The Borrower, the Banks, and the Administrative Agent
agree that assignments permitted hereunder (including the assignment of any
Advance or portion thereof) may be made with all voting rights, and shall
be made pursuant to an Assignment and Assumption Agreement substantially in
the form of Exhibit Q attached hereto. An administrative fee of $3,500
---------
shall be payable to the Administrative Agent by the assigning Bank at the
time of any assignment under this Section 11.5(c);
(iv) No participation agreement shall confer any rights under
this Agreement or any other Loan Document to any purchaser thereof, or
relieve any Bank from any of its obligations under this Agreement, and all
actions hereunder shall be conducted as if no such participation had been
granted; provided, however, that any participation agreement may confer on
-------- -------
the participant the right to approve or disapprove decreases in the
interest rate, increases in or forgiveness of the principal amount of the
Loans participated in by such participant, decreases in fees, extensions of
the Maturity Date or other principal payment date for the Loans or of the
scheduled reduction of the Commitment and releases of Collateral or
guarantors, except for Collateral the sale or disposition of which is
permitted hereunder;
(v) Each Bank agrees to provide the Administrative Agent and the
Borrower with prompt written notice of any issuance of participations in or
assignments of its interests hereunder;
(vi) No assignment, participation or other transfer of any rights
hereunder or under the Notes shall be effected that would result in any
interest requiring registration under the Securities Act of 1933, as
amended, or qualification under any state securities law;
(vii) No such assignment may be made to any bank or other
financial institution (x) with respect to which a
-85-
receiver or conservator (including, without limitation, the Federal Deposit
Insurance Corporation, the Resolution Trust Company or the Office of Thrift
Supervision) has been appointed or (y) that with respect to any assignee
that is a bank, to the knowledge of the assignor after due inquiry, is not
"adequately capitalized" (as such term is defined in Section 131(b)(1)(B)
of the Federal Deposit Insurance Corporation Improvement Act as in effect
on the Agreement Date); and
(viii) If applicable, each Bank shall, and shall cause each of
its assignees to, provide to the Administrative Agent on or prior to the
effective date of any assignment an appropriate Internal Revenue Service
form as required by Applicable Law supporting such Bank's or assignee's
position that no withholding by the Borrower or the Administrative Agent
for U.S. income tax payable by such Bank or assignee in respect of amounts
received by it hereunder is required. For purposes of this Agreement, an
appropriate Internal Revenue Service form shall mean Form 1001 (Ownership
Exemption or Reduced Rate Certificate of the U.S. Department of Treasury),
or Form 4224 (Exemption from Withholding of Tax on Income Effectively
Connected with the Conduct of a Trade or Business in the United States), or
any successor or related forms adopted by the relevant U.S. taxing
authorities.
(d) Except as specifically set forth in Section 11.5(c) hereof,
nothing in this Agreement or the Notes, expressed or implied, is intended to or
shall confer on any Person other than the respective parties hereto and thereto
and their successors and assignees permitted hereunder and thereunder any
benefit or any legal or equitable right, remedy or other claim under this
Agreement or the Notes.
(e) In the case of any participation, all amounts payable by the
Borrower under the Loan Documents shall be calculated and made in the manner and
to the parties hereto as if no such participation had been sold.
(f) Except as specifically set forth in Section 11.5(c) hereof,
nothing in this Agreement or the Notes, expressed or implied, is intended to or
shall confer on any person other than the respective parties hereto and thereto
and their successors and assignees permitted hereunder and thereunder any
benefit or any legal or equitable right, remedy or other claim under this
Agreement or the Notes.
(g) The provisions of this Section 11.5 shall not apply to any
purchase of participations among the Banks pursuant to Section 2.11 hereof.
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Section 11.6 Accounting Principles. All references in this Agreement to
---------------------
GAAP shall be to such principles as in effect from time to time. All accounting
terms used herein without definition shall be used as defined under GAAP. All
financial or accounting calculations or determinations required pursuant to this
Agreement unless otherwise expressly provided shall be made in accordance with
GAAP and shall be made on a consolidated basis for the Borrower and the
Restricted Subsidiaries.
Section 11.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be
-------------
construed in accordance with and governed by the internal laws of the State of
New York applicable to agreements made and to be performed in New York. If any
action or proceeding shall be brought by the Administrative Agent or the
Documentation Agent or any Bank hereunder or under any other Loan Document in
order to enforce any right or remedy under this Agreement or under any Note or
any other Loan Document, the Borrower hereby consents and will, and the Borrower
will cause each Restricted Subsidiary to, submit to the jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Southern District of New York on the date of this Agreement. The
Borrower, for itself and on behalf of its Restricted Subsidiaries, hereby agrees
that service of the summons and complaint and all other process which may be
served in any such suit, action or proceeding may be effected by mailing by
registered mail a copy of such process to the offices of the Borrower at the
address given in Section 11.1 hereof and that personal service of process shall
not be required. Nothing herein shall be construed to prohibit service of
process by any other method permitted by law, or the bringing of any suit,
action or proceeding in any other jurisdiction. The Borrower agrees that final
judgment in such suit, action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
--------
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(a) In no event shall the amount of interest due or payable hereunder
or under the Notes exceed the maximum rate of interest allowed by Applicable
Law, and in the event any such payment is inadvertently made by the Borrower or
inadvertently received by the Administrative Agent or any Bank, then such excess
sum shall be credited as a payment of principal, unless the Borrower shall
notify the Administrative Agent or such Bank, in writing, that it elects to have
such excess sum returned forthwith. It is the express intent hereof that the
Borrower not pay and the Administrative Agent and the Banks not receive,
directly or indirectly in any manner whatsoever, interest in excess of that
which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Banks of the Base Rate and the
LIBOR Rate as reference rates for the determination of interest on the Loans,
the Banks shall be under no obligation to obtain funds from any particular
source in order to charge interest to the Borrower at interest rates related to
such reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents and
------------------------------
the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any term
--------------------
hereof nor any Loan Document may be amended orally, nor may any provision hereof
be waived orally, but only by an instrument in writing signed by the Majority
Banks or the Borrower, as the case may be, and, in the case of an amendment, by
the Borrower and the Majority Banks, except that in the event of (a) any
increase in the amount of any Bank's portion of the Commitment, (b) any delay or
extension in the terms of repayment of the Loans or reduction of the Commitment
provided in Section 2.5 or 2.7 hereof, (c) any reduction in principal, interest
or fees due hereunder or postponement of the payment thereof without a
corresponding payment by the Borrower, (d) any release of any portion of the
Collateral for the Loans except for Collateral the sale or disposition of which
is permitted hereunder, (e) any waiver of any Default due to the failure by the
Borrower to pay any sum due to any of the Banks hereunder, (f) any release of
any Guaranty of all or any portion of the Obligations, except in connection with
a merger, sale or other disposition otherwise permitted hereunder (in which
case, such release shall require no further approval by the Banks), or (g) any
amendment of this Section 11.12, of the definition of Majority Banks, or of any
Section herein to the extent that such Section requires action by all Banks, any
amendment or waiver or
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consent may be made only by an instrument in writing signed by each of the Banks
and, in the case of an amendment, by the Borrower. Any amendment to any
provision hereunder governing the rights, obligations, or liabilities of the
Administrative Agent or the Documentation Agent, in each case, in its capacity
as such, may be made only by an instrument in writing signed by such affected
Person and by each of the Banks.
Section 11.13 Entire Agreement. Except as otherwise expressly provided
----------------
herein, this Agreement and the other documents described or contemplated herein
will embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder or
-------------------
under any other Loan Document shall in any way affect the ability of the
Administrative Agent or the Documentation Agent and each Bank to enter into or
maintain business relationships with the Borrower or any of its Affiliates
beyond the relationships specifically contemplated by this Agreement and the
other Loan Documents.
Section 11.15 Directly or Indirectly. If any provision in this Agreement
----------------------
refers to any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision; provided, however, that any action taken by an
-------- -------
Unrestricted Subsidiary shall not be deemed to have been taken by the Borrower
or any Restricted Subsidiary.
Section 11.16 Reliance on and Survival of Various Provisions. All
----------------------------------------------
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by the Administrative Agent or the Documentation Agent and each of
the Banks notwithstanding any investigation heretofore or hereafter made by
them, and (ii) shall survive the execution and delivery of the Notes and shall
continue in full force and effect so long as any Note is outstanding and unpaid.
Any right to indemnification hereunder, including, without limitation, rights
pursuant to Sections 2.10, 2.12, 5.12, 10.3 and 11.2 hereof, shall survive the
termination of this Agreement and the payment and performance of all
Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the Security
-----------
Documents and are intended by the parties hereto to be in parity with the
Interest Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower except for Indebtedness secured by Permitted Liens
(to the extent such
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Liens are statutorily senior to the Liens securing the Obligations).
Section 11.18 Obligations Several. The obligations of the Administrative
-------------------
Agent and each of the Banks hereunder are several, not joint.
Section 11.19 Confidentiality. The Banks shall hold all non-public,
---------------
proprietary or confidential information (which has been identified as such by
the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices;
provided, however, the Banks may make disclosure of any such information to such
-------- -------
of their examiners, Affiliates, outside auditors, counsel, consultants,
appraisers and other professional advisors as may be reasonably necessary in
connection with this Agreement or as reasonably required by any proposed
syndicate member or any proposed transferee or participant in connection with
the contemplated transfer of any Note or participation therein or as required or
requested by any governmental authority or representative thereof or in
connection with the enforcement hereof or of any Loan Document or related
document or pursuant to legal process or with respect to any litigation between
or among the Borrower and any of the Banks; provided, however, that, as a
-------- -------
condition to receipt of any such information, each such Affiliate, auditor,
counsel, consultant, appraiser, professional advisor, proposed transferee or
participant shall agree in writing to treat all such information as
confidential; and provided, further, that prior to any such disclosure to any
-------- -------
unrelated entity outside the ordinary course of business or pursuant to legal
process, the disclosing Bank shall give notice of such disclosure to the
Borrower and cooperate with the Borrower in any efforts to limit or restrict
such disclosure. In no event shall any Bank be obligated or required to return
any materials furnished to it by the Borrower. The foregoing provisions shall
not apply to a Bank with respect to information that (i) is or becomes generally
available to the public (other than through such Bank), (ii) is already in the
possession of such Bank on a nonconfidential basis, or (iii) comes into the
possession of such Bank in a manner not known to such Bank to involve a breach
of a duty of confidentiality owing to the Borrower.
ARTICLE 12
Waiver of Jury Trial
--------------------
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON BEHALF
--------------------
OF THE RESTRICTED SUBSIDIARIES, THE ADMINISTRATIVE
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AGENT, THE DOCUMENTATION AGENT AND THE BANKS, HEREBY AGREE TO WAIVE AND HEREBY
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING
OF ANY TYPE IN WHICH THE BORROWER, ANY OF THE RESTRICTED SUBSIDIARIES, ANY OF
THE BANKS, THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT OR ANY OF THEIR
RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS
ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE
OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION
12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY
RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF
THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT OR ANY BANK HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT
OR ANY BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: TCG NEW YORK, INC., a Delaware corporation
By: Xxxxx X. Xxx
-----------------------------------------------
Its: Vice President & Treasurer
-----------------------------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By: Xxxx Xxxx
-----------------------------------------------
Its: Vice President
-----------------------------------------------
DOCUMENTATION AGENT: THE CHASE MANHATTAN BANK (formerly Chemical Bank)
By: Xxx X. Xxxxx
-----------------------------------------------
Its: Vice President
-----------------------------------------------
BANKS:
ADDRESS: TORONTO DOMINION (TEXAS), INC.
000 Xxxxxx Xxxxxx
Xxxxx 0000 By: Xxxx Xxxx
Xxxxxxx, Xxxxx 00000 -----------------------------------------------
Its: Vice President
-----------------------------------------------
with a copy to:
USA Division
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
ADDRESS: THE CHASE MANHATTAN BANK (formerly
Chemical Bank)
Xxx Xxxxx Xxxxxxxxx Xxxxx
0xx Xxxxx By: Xxx X. Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 -----------------------------------------------
Telecopy No.: (000) 000-0000 Its: Vice President
-----------------------------------------------
ADDRESS: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
000 X. Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 By: R. Xxxxxx Xxxxxx, Jr.
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Managing Director
------------------------------------------------
ADDRESS: BANK OF HAWAII
Xxxxxxx Xxxxx
000 Xxxxxxxx Xxxxxx By: J. Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000 ------------------------------------------------
Telecopy No.: (000) 000-0000 Its: Vice President
------------------------------------------------
ADDRESS: BANK OF MONTREAL CHICAGO BRANCH
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 By: X.X. Xxxx
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its:
------------------------------------------------
ADDRESS: THE BANK OF NEW YORK COMPANY, INC.
Xxx Xxxx Xxxxxx
00xx Xxxxx By: Xxxxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 ------------------------------------------------
Telecopy No.: (000) 000-0000 Its: Authorized Signer
------------------------------------------------
ADDRESS: THE BANK OF NOVA SCOTIA
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000 By: Xxxxxxx X. Xxxxxxxxxx, Xx.
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Authorized Signatory
------------------------------------------------
ADDRESS: BANK OF TOKYO-MITSUBISHI TRUST COMPANY
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 By: Xxxx X. Judge
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Vice President & Co-Head
------------------------------------------------
ADDRESS: CORESTATES BANK, N.A.
FC 1-8-11-28
0000 Xxxxxxxx Xxxxxx By: Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000 ------------------------------------------------
Telecopy No.: (000) 000-0000 Its: Vice President
------------------------------------------------
ADDRESS: CREDIT LYONNAIS NEW YORK BRANCH
1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000 By: Xxxxxxx X. Xxxx
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Vice President
------------------------------------------------
ADDRESS: FLEET NATIONAL BANK
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000 By: Xxxxxxx X. Xxxxxx
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Banking Officer
------------------------------------------------
ADDRESS: XXXXXXX XXXXX CREDIT PARTNERS L.P.
00 Xxxxx Xxxxxx
00xx Xxxxx By: Xxxx X. Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 ------------------------------------------------
Telecopy No.: (000) 000-0000 Its: Authorized Signer
------------------------------------------------
ADDRESS: XXXXXX COMMERCIAL PAPER INC.
3 World Financial Center
10th Floor By: Xxxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 ------------------------------------------------
Telecopy No.: (000) 000-0000 Its: Authorized Signatory
------------------------------------------------
ADDRESS: THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 By: Xxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Deputy General Manager
------------------------------------------------
ADDRESS: MELLON BANK, N.A.
0000 Xxxxxx Xxxxxx
Xxxx 000 By: X.X. Xxxxxx
Xxxxxxxxxxxx, XX 00000 ------------------------------------------------
Telecopy No.: (000) 000-0000 Its: First Vice President
------------------------------------------------
ADDRESS: XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
00 Xxxx Xxxxxx
00xx Xxxxx By: Xxxxxx X. Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 ------------------------------------------------
Telecopy No.: (000) 000-0000 Its: Vice President
------------------------------------------------
ADDRESS: NATIONSBANK OF TEXAS, N.A.
000 Xxxx Xxxxxx
Xxxxxx, XX 00000 By: Xxxxxxxx Xxxxxx
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Vice President
------------------------------------------------
ADDRESS: PNC BANK, NATIONAL ASSOCIATION
Mail Stop F2-F070-21-1
0000 Xxxxxx Xxxxxx By: Xxxxx X. Xxxxx
21st Floor ------------------------------------------------
Xxxxxxxxxxxx, XX 00000 Its: Senior Vice President
Telecopy No.: (000) 000-0000 ------------------------------------------------
ADDRESS: ROYAL BANK OF CANADA
Grand Cayman (North
America No. 1) Branch By: Xxxx Xxxxxxxx
c/o New York Branch ------------------------------------------------
Financial Square, 23rd Floor Its: Manager
00 Xxx Xxxx ------------------------------------------------
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Manager, Credit Administration
Telecopy No.: (000) 000-0000
with a copy to:
--------------
Xxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Page
Telecopy No.: (000) 000-0000
ADDRESS: SOCIETE GENERALE, NEW YORK BRANCH
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 By: Xxxx Sadih-Khan
Telecopy No.: (000) 000-0000 ------------------------------------------------
Its: Vice President
------------------------------------------------
