Exhibit 10.4
CREDIT AGREEMENT
among
ACC ACQUISITION CO.
(INCLUDING ITS SUCCESSOR BY MERGER, AMERICAN CELLULAR CORPORATION),
BORROWER
BANC OF AMERICA SECURITIES LLC,
SOLE LEAD ARRANGER AND BOOK RUNNING MANAGER
BANK OF AMERICA, N.A.,
ADMINISTRATIVE AGENT
▇▇▇▇▇▇ COMMERCIAL PAPER INC. and TD SECURITIES (USA) INC.,
CO-SYNDICATION AGENTS
CIBC WORLD MARKETS CORP. and BARCLAYS BANK PLC,
CO-DOCUMENTATION AGENTS
The MANAGING AGENTS and CO-AGENTS named herein
and
THE LENDERS NAMED HEREIN,
LENDERS
$1,750,000,000
SENIOR SECURED CREDIT FACILITIES
DATED AS OF FEBRUARY 25, 2000
CREDIT AGREEMENT
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TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND TERMS 1
1.1 Definitions 1
1.2 Number and Gender of Words; Other References 31
1.3 Accounting Principles 31
SECTION 2 BORROWING PROVISIONS 31
2.1 Revolver Facility 31
2.2 Term Loan A Facility 31
2.3 Term Loan B Facility 32
2.4 Term Loan C Facility 32
2.5 LC Subfacility 32
2.6 Swing Line Subfacility 35
2.7 Terminations or Reductions of Commitments 37
2.8 Borrowing Procedure 37
SECTION 3 TERMS OF PAYMENT 38
3.1 Loan Accounts, Notes, and Payments 38
3.2 Interest and Principal Payments 39
3.3 Prepayments 41
3.4 Interest Options 45
3.5 Quotation of Rates 46
3.6 Default Rate 46
3.7 Interest Recapture 46
3.8 Interest Calculations 46
3.9 Maximum Rate 46
3.10 Interest Periods 47
3.11 Conversions 47
3.12 Order of Application 48
3.13 Sharing of Payments, Etc 48
3.14 Offset 49
3.15 Booking Borrowings 49
SECTION 4 CHANGE IN CIRCUMSTANCES 49
4.1 Increased Cost and Reduced Return 49
4.2 Limitation on Types of Loans 50
4.3 Illegality 51
4.4 Treatment of Affected Loans 51
4.5 Compensation 51
4.6 Taxes 52
SECTION 5 FEES 54
5.1 Treatment of Fees 54
5.2 Fees of Administrative Agent and Arranger 54
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5.3 Revolver Facility Commitment Fees 54
5.4 LC Fees 55
SECTION 6 SECURITY; GUARANTIES 55
6.1 Guaranties 55
6.2 Collateral 55
6.3 Future Liens 55
6.4 Release of Collateral 56
6.5 Negative Pledge 56
6.6 Control; Limitation of Rights 57
SECTION 7 CONDITIONS PRECEDENT 57
7.1 Conditions Precedent to Closing 57
7.2 Conditions Precedent to a Permitted Acquisition 57
7.3 Conditions Precedent to Each Borrowing 58
SECTION 8 REPRESENTATIONS AND WARRANTIES 58
8.1 Purpose of Credit Facility 58
8.2 Existence, Good Standing, Authority, and Authorizations 59
8.3 Subsidiaries; Capital Stock 59
8.4 Authorization and Contravention 59
8.5 Binding Effect 60
8.6 Financial Statements 60
8.7 Litigation, Claims, Investigations 60
8.8 Taxes 60
8.9 Environmental Matters 61
8.10 Employee Benefit Plans 61
8.11 Properties; Liens 61
8.12 Government Regulations 61
8.13 Transactions with Affiliates 61
8.14 Debt 61
8.15 Material Agreements; Management Agreements 61
8.16 Insurance 62
8.17 Labor Matters 62
8.18 Solvency 62
8.19 Intellectual Property 62
8.20 Compliance with Laws 62
8.21 Permitted Acquisitions; Intercompany Acquisitions 62
8.22 Regulation U 63
8.23 Tradenames 63
8.24 Year 2000 63
8.25 Full Disclosure 63
8.26 No Default 64
8.27 Perfection of Security Interests 64
8.28 The American Merger 64
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SECTION 9 COVENANTS 65
9.1 Use of Proceeds 65
9.2 Books and Records 65
9.3 Items to be Furnished 65
9.4 Inspections 67
9.5 Taxes 67
9.6 Payment of Obligations 67
9.7 Maintenance of Existence, Assets, and Business 67
9.8 Insurance 68
9.9 Preservation and Protection of Rights 68
9.10 Employee Benefit Plans 69
9.11 Environmental Laws 69
9.12 Debt and Guaranties 69
9.13 Liens 70
9.14 Transactions with Affiliates 71
9.15 Compliance with Laws and Documents 71
9.16 Permitted Acquisitions, Subsidiary Guaranties, and Collateral Documents 71
9.17 Assignment 71
9.18 Fiscal Year and Accounting Methods 71
9.19 Government Regulations 72
9.20 Loans, Advances, and Investments 72
9.21 Distributions and Restricted Payments 73
9.22 Restrictions on Subsidiaries 74
9.23 Sale of Assets 74
9.24 Sale-Leaseback Financings 74
9.25 Mergers and Dissolutions; Sale of Capital Stock 74
9.26 New Business 75
9.27 Financial ▇▇▇▇▇▇ 75
9.28 Affiliate Subordination Agreements 75
9.29 Amendments to Documents 76
9.30 Financial Covenants 76
9.31 Tower Sale-Leaseback 78
9.32 Parent Covenant 78
SECTION 10 DEFAULT 78
10.1 Payment of Obligation 78
10.2 Covenants 79
10.3 Debtor Relief 79
10.4 Judgments and Attachments 79
10.5 Government Action 79
10.6 Misrepresentation 79
10.7 Change of Management 79
10.8 Change of Control 79
10.9 Change Business of Parent 79
10.10 Authorizations 79
10.11 Default Under Other Debt and Agreements 80
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10.12 LCs 80
10.13 Validity and Enforceability of Loan Documents 80
10.14 Material Adverse Effect 80
10.15 Environmental Liability 80
10.16 Pledged Stock 80
10.17 Dissolution 81
SECTION 11 RIGHTS AND REMEDIES 81
11.1 Remedies Upon Default 81
11.2 Company Waivers 81
11.3 Performance by Administrative Agent 81
11.4 Delegation of Duties and Rights 82
11.5 Not in Control 82
11.6 Course of Dealing 82
11.7 Cumulative Rights 82
11.8 Application of Proceeds 82
11.9 Certain Proceedings 82
11.10 Limitation of Rights 83
11.11 Expenditures by Lenders 83
11.12 INDEMNIFICATION 83
SECTION 12 AGREEMENT AMONG LENDERS 84
12.1 Administrative Agent 84
12.2 Expenses 86
12.3 Proportionate Absorption of Losses 86
12.4 Delegation of Duties; Reliance 86
12.5 Limitation of Liability 86
12.6 Default; Collateral 87
12.7 Limitation of Liability 89
12.8 Relationship of Lenders 89
12.9 Benefits of Agreement 89
12.10 Agents 89
12.11 Obligations Several 89
12.12 Financial ▇▇▇▇▇▇ 89
SECTION 13 MISCELLANEOUS 90
13.1 Headings 90
13.2 Nonbusiness Days 90
13.3 Communications 90
13.4 Form and Number of Documents 90
13.5 Exceptions to Covenants 91
13.6 Survival 91
13.7 Governing Law 91
13.8 Invalid Provisions 91
13.9 Entirety 91
13.10 Jurisdiction; Venue; Service of Process; Jury Trial 91
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13.11 Amendments, Consents, Conflicts, and Waivers 92
13.12 Multiple Counterparts 94
13.13 Successors and Assigns; Assignments and Participations 94
13.14 Confidentiality 97
13.15 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances 97
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SCHEDULES AND EXHIBITS
Schedule 1 - American Merger Documents
Schedule 2.1 - Lenders and Commitments
Schedule 7.1 - Conditions Precedent to Closing
Schedule 7.1A - Post-Closing Requirements
Schedule 7.2 - Conditions Precedent to Permitted Acquisition
Schedule 8.2 - FCC and PUC Licenses
Schedule 8.3 - Capital Stock and Partnership Interests
Schedule 8.15 - Material Agreements
Schedule 8.23 - Tradenames
Schedule 9.12 - Existing Debt
Schedule 9.13 - Existing Liens
Schedule 9.20 - Existing Investments
Exhibit A-1 - Form of Revolver Note
Exhibit A-2 - Form of Term Loan A Note
Exhibit A-3 - Form of Term Loan B Note
Exhibit A-4 - Form of Term Loan C Note
Exhibit A-5 - Form of Swing Line Note
Exhibit B-1 - Form of Borrowing Notice
Exhibit B-2 - Form of Conversion Notice
Exhibit B-3 - Form of LC Request
Exhibit C - Form of Guaranty
Exhibit D - Form of Pledge, Assignment, and Security Agreement
Exhibit E-1 - Form of Compliance Certificate
Exhibit E-2 - Form of Permitted Acquisition Compliance Certificate
Exhibit E-3 - Form of Permitted Acquisition Loan Closing Certificate
Exhibit F - Form of Assignment and Acceptance Agreement
Exhibit G-1 - Form of Opinion of Borrower's Counsel
Exhibit G-2 - Form of Opinion of Special Regulatory Counsel
Exhibit G-3 - Form of Opinion of Local Counsel
Exhibit H - Form of Affiliate Subordination Agreement
CREDIT AGREEMENT
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of February 25, 2000, among
ACC ACQUISITION CO. (including its successor by merger, American Cellular
Corporation) (as more fully defined in SECTION 1, "BORROWER"), ACC ACQUISITION
LLC (as more fully defined in SECTION 1, "PARENT"), Lenders (defined below),
▇▇▇▇▇▇ COMMERCIAL PAPER INC. and TD SECURITIES (USA) INC., as Co-Syndication
Agents (defined below), CIBC WORLD MARKETS CORP. and BARCLAYS BANK PLC, as
Co-Documentation Agents (defined below), and BANK OF AMERICA, N.A., as
Administrative Agent (defined below), for itself and the other Lenders.
RECITALS
A. Affiliates of AT&T Wireless Services, Inc., a Delaware
corporation ("AWS"), and ▇▇▇▇▇▇ Communications Corporation, an Oklahoma
corporation ("COMMUNICATIONS"), have formed ACC Acquisition LLC, a Delaware
limited liability company ("PARENT").
B. ACC Acquisition Co., a Delaware corporation and Wholly-owned
Subsidiary of Parent, will merge with and into American Cellular Corporation,
a Delaware corporation ("AMERICAN"), pursuant to that certain Agreement and
Plan of Merger dated as of October 5, 1999, among Parent, ACC Acquisition Co.,
and American (the "AMERICAN MERGER").
C. Borrower has requested that, in addition to other sources of
financing, Lenders extend credit to Borrower to enable, among other things,
the consummation of the American Merger.
D. Upon and subject to the terms and conditions of this
Agreement, Lenders are willing to extend credit to Borrower, providing for
four credit facilities totaling $1,750,000,000, in the form of a revolving
loan facility in the aggregate principal amount of $300,000,000 and three term
loan facilities in the aggregate principal amount of $700,000,000,
$350,000,000, and $400,000,000, respectively.
Accordingly, in consideration of the mutual covenants contained herein,
Borrower, Administrative Agent, the other Agents, and Lenders agree as follows:
SECTION DEFINITIONS AND TERMS.
DEFINITIONS. As used herein:
ACQUISITION means any transaction or series of related transactions for
the purpose of, or resulting in, directly or indirectly, (a) the acquisition by
any Company of all or substantially all of the assets of a Person or of any
business or division of a Person; (b) the acquisition by any Company of more
than 50% of any class of Voting Stock (or similar ownership interests) of any
Person (PROVIDED THAT, formation or organization of any entity shall not
constitute an "ACQUISITION" to the extent that the amount of the loan, advance,
investment, or capital contribution in such entity constitutes a permitted
investment under SECTION 9.20); or (c) a
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merger, consolidation, amalgamation, or other combination by any Company
with another Person if a Company is the surviving entity, PROVIDED THAT, (i)
in any merger involving Borrower, Borrower must be the surviving entity; and
(ii) for purpose of this Agreement, an Intercompany Acquisition is not an
"ACQUISITION."
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined by Administrative Agent to be equal to
the QUOTIENT obtained by DIVIDING (a) the Eurodollar Rate for such Eurodollar
Rate Borrowing for such Interest Period by (b) 1 MINUS the Reserve Requirement
for such Eurodollar Rate Borrowing for such Interest Period.
ADMINISTRATIVE AGENT means Bank of America, N.A., and its permitted
successors or assigns as "ADMINISTRATIVE AGENT" for Lenders under the Loan
Documents.
AFFILIATE of any Person means any other individual or entity who
directly or indirectly controls, or is controlled by, or is under common control
with, such Person, and, for purposes of this definition only, "CONTROL,"
"CONTROLLED BY," and "UNDER COMMON CONTROL WITH" mean possession, directly or
indirectly, of the power to direct or cause the direction of management or
policies (whether through ownership of voting securities, by contract, or
otherwise).
AFFILIATE SUBORDINATION AGREEMENT means, individually, and AFFILIATE
SUBORDINATION AGREEMENTS means, collectively, an Affiliate Subordination
Agreement (substantially in the form of EXHIBIT H) executed and delivered by any
Person pursuant to the requirements of the Loan Documents, and any amendments,
modifications, supplements, ratifications, or restatements of any Affiliate
Subordination Agreement made in accordance with the Loan Documents.
AGENTS means, collectively, Administrative Agent, Co-Syndication
Agents, Co-Documentation Agents, Managing Agents, and Co-Agents.
AGREEMENT means this Credit Agreement (as the same may hereafter be
amended, modified, supplemented, or restated from time to time).
AMERICAN means American Cellular Corporation, a Delaware corporation.
AMERICAN MERGER means the merger of Borrower with and into American on
the Closing Date pursuant to the American Merger Agreement.
AMERICAN MERGER AGREEMENT means the Agreement and Plan of Merger dated
as of October 5, 1999, among Parent, Borrower, and American, TOGETHER WITH all
amendments or modifications thereto in form and upon terms acceptable to
Administrative Agent.
AMERICAN MERGER DOCUMENTS means the American Merger Agreement and all
documents or instruments executed pursuant thereto or in connection therewith as
described on SCHEDULE 1, TOGETHER WITH all amendments, modifications,
supplements, or restatements thereof in form and upon terms reasonably
satisfactory to Administrative Agent.
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ANNUALIZED INTEREST EXPENSE means, with respect to the Companies on a
consolidated basis, on any date of determination, the PRODUCT of (a) the
QUOTIENT of (i) the Interest Expense arising on and after the Closing Date to
and including the last day of the applicable period of determination DIVIDED BY
(ii) the number of days from and including the Closing Date to and including the
last day of the applicable period of determination, MULTIPLIED BY (b) 360.
ANNUALIZED OPERATING CASH FLOW means, with respect to the Companies on
a consolidated basis, (a) on any date of determination occurring on the Closing
Date to (but not including) March 31, 2000, the Operating Cash Flow for the
two-fiscal quarter period ending December 31, 1999, MULTIPLIED BY two, (b) on
any date of determination occurring on March 31, 2000, to (but not including)
June 30, 2000, the Operating Cash Flow for the three-fiscal quarter period
ending March 31, 2000, MULTIPLIED BY 4/3.
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "LENDING OFFICE" of such Lender (or an affiliate of such Lender)
designated on SCHEDULE 2.1 or such other office that such Lender (or an
affiliate of such Lender) may from time to time specify to Administrative Agent
and Borrower by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means:
Solely with respect to each Borrowing under the
Revolver Facility and under the Term Loan A Facility, on any date of
determination, the percentage per annum set forth in the table below
for the Type of Borrowing that corresponds to the Leverage Ratio at
such date of determination, as calculated based on the quarterly
Compliance Certificate most recently delivered pursuant to SECTION 9.3
(or the most recent Permitted Acquisition Compliance Certificate for a
Permitted Acquisition, as the case may be):
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LEVERAGE RATIO APPLICABLE MARGIN
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BASE RATE BORROWINGS EURODOLLAR RATE BORROWINGS
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Less than 5.75:1.0 0.250% 1.500%
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Greater than or equal to 0.625% 1.875%
5.75:1.0,
but less than 6.75:1.0
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Greater than or equal to 0.875% 2.125%
6.75:1.0,
but less than 8.25:1.0
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Greater than or equal to 8.25:1.0 1.250% 2.500%
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Solely with respect to each Borrowing under the Term
Loan B Facility, on any date of determination, the percentage per annum
set forth in the table below for the Type of Borrowing that corresponds
to the Leverage Ratio at such date of determination, as calculated
based on the quarterly Compliance Certificate most recently delivered
pursuant to SECTION 9.3 (or the most recent Permitted Acquisition
Compliance Certificate for a Permitted Acquisition, as the case may
be):
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LEVERAGE RATIO APPLICABLE MARGIN
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BASE RATE BORROWINGS EURODOLLAR RATE BORROWINGS
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Less than 6.75:1.0 1.500% 2.750%
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Greater than or equal to 1.750% 3.000%
6.75:1.0
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Solely with respect to each Borrowing under the Term
Loan C Facility, a percentage per annum equal to 3.250% for Eurodollar
Rate Borrowings and 2.000% for Base Rate Borrowings.
The provisions in ITEMS (a) and (b) are further
subject to the following:
1) Until the second Business Day after the
Financial Statements and Compliance Certificate for the
fiscal quarter ending June 30, 2000, shall have been
delivered hereunder, the Applicable Margin for Base Rate
Borrowings and Eurodollar Rate Borrowings under the Revolver
Facility, the Term Loan A Facility, and the Term Loan B
Facility shall be the highest Applicable Margin for the
relevant Type of Borrowing for the relevant Facility. With
respect to any adjustments in the Applicable Margin as a
result of changes in the Leverage Ratio on and after June
30, 2000, such adjustment shall be effective commencing on
the second Business Day after the later of (A) the delivery
of Financial Statements (and the related Compliance
Certificate) pursuant to SECTIONS 9.3(a) and 9.3(b), or (B)
the delivery of the most recent Permitted Acquisition
Compliance Certificate for a Permitted Acquisition; and
2) If Borrower and Parent fail to timely
furnish to Lenders the Financial Statements and related
Compliance Certificates as required to be delivered pursuant
to SECTIONS 9.3(a) and 9.3(b), and such failure shall not be
remedied within five days, then (UNLESS the Default Rate has
been effected by Required Lenders pursuant to SECTION 3.6)
the Applicable Margin for the Revolver Facility, the Term
Loan A Facility, and the Term Loan B Facility shall be the
maximum Applicable Margin for the respective Facility
specified in the tables above.
APPLICABLE MARGIN FOR COMMITMENT FEES means, on any
date of determination, the percentage set forth in the table
below that corresponds with the Leverage Ratio at such date of
determination, as calculated based on the quarterly Compliance
Certificates most recently delivered pursuant to SECTION 9.3
(or the most recent Permitted Acquisition Compliance
Certificate for a Permitted Acquisition, as the case may be):
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LEVERAGE RATIO APPLICABLE MARGIN FOR
COMMITMENT FEES
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Greater than or equal to 6.75 to 0.500%
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1.00
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Less than 6.75 to 1.00 0.375%
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(a) Until the second Business Day after the Financial
Statements and Compliance Certificate for the fiscal quarter ending
June 30, 2000, shall have been delivered hereunder, the Applicable
Margin for Commitment Fees shall be the highest Applicable Margin for
Commitment Fees. With respect to any adjustments in the Applicable
Margin for Commitment Fees as a result of changes in the Leverage Ratio
on and after June 30, 2000, such adjustment shall be effective
commencing on the second Business Day after the delivery of Financial
Statements (and related Compliance Certificate) pursuant to SECTIONS
9.3(a) and 9.3(b) (or the most recent Permitted Acquisition Compliance
Certificate for a Permitted Acquisition, as the case may be).
(b) If Borrower and Parent fail to timely furnish to
Lenders the Financial Statements and related Compliance Certificates as
required to be delivered pursuant to SECTIONS 9.3(a) and 9.3(b), and
such failure shall not be remedied within five days, then the
Applicable Margin for Commitment Fees shall be the maximum Applicable
Margin specified in the table above.
APPROVED FUND means, with respect to any Lender that
is a fund or commingled investment vehicle that invests in
loans, any other fund that invests in loans and is managed or
advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
ARRANGER means Banc of America Securities LLC, and
its successors and assigns, in its capacity as sole lead
arranger and book running manager under the Loan Documents.
ASSET OPERATING CASH FLOW means, with respect to any
Permitted Asset Swap and measured as of the date of the
related Cellular Asset disposition by the Companies, that
portion of the Operating Cash Flow of the Companies
attributable to the Cellular Assets of the Companies being
conveyed in such Permitted Asset Swap.
ASSIGNMENT AND ACCEPTANCE AGREEMENT means (a) an
assignment and acceptance agreement substantially in the form
and upon the terms of EXHIBIT F, executed and delivered by any
Person pursuant to the requirements of the Loan Documents, and
(b) any amendments, modifications, supplements, restatements,
ratifications, or reaffirmations of any Assignment and
Acceptance Agreement made in accordance with the Loan
Documents.
ASSUMED TAXES means, with respect to any Equity
Issuance, an amount equal to such incremental annual increase
in franchise Taxes as Borrower estimates in good faith shall
be payable as a result of such Equity Issuance.
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AUTHORIZATIONS means all material filings,
recordings, and registrations with, and all validations or
exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, grants of authority, and
permits from, any Governmental Authority (including, without
limitation, the FCC and applicable PUCs), including without
limitation, any of the foregoing authorizing or permitting the
acquisition, construction, or operation of any System.
AWS means AT&T Wireless Services, Inc., a Delaware
corporation.
BANK OF AMERICA means Bank of America, N.A., in its
individual capacity as a Lender, and its successors and
assigns.
BASE RATE means, for any day, the rate per annum
equal to the HIGHER of (a) the Federal Funds Rate for such day
PLUS one-half of one percent (.5%) and (b) the Prime Rate for
such day. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective on the
effective date of such change in the Prime Rate or the Federal
Funds Rate.
BASE RATE BORROWING means a Borrowing bearing
interest at the SUM of the Base Rate plus the Applicable
Margin for Base Rate Borrowings.
BORROWER means ACC Acquisition Co. and its successor
by merger, American, TOGETHER WITH any successor or assign of
Borrower permitted by the Loan Documents.
BORROWING means any amount disbursed (a) by one or
more Lenders under the Loan Documents (under the Revolver
Facility, the LC Subfacility, the Swing Line Subfacility, or
any Term Loan Facility), whether such amount constitutes an
original disbursement of funds, the continuation of an amount
outstanding, or payment of a draft under an LC, or (b) by any
Lender in accordance with, and to satisfy the obligations of
any Company under, any Loan Document.
BORROWING DATE is defined in SECTION 2.8(a).
BORROWING NOTICE means a request for Borrowing made
pursuant to SECTION 2.8(a), substantially in the form of
EXHIBIT B-1.
BUDGET means the most recently delivered of the (a)
budget showing the projected income and expenses of the
Companies for fiscal year 2000 delivered on the Closing Date
as required in ITEM 22 on SCHEDULE 7.1 delivered pursuant to
SECTION 7.1 or (b) the Budget delivered pursuant to SECTION
9.3(d), TOGETHER WITH any adjustments to any Budget (whether
described in CLAUSE (a) or CLAUSE (b)) made from time to time
based on projections delivered in connection with Permitted
Acquisitions pursuant to SECTION 7.2 and the requirements of a
"PERMITTED ACQUISITION" as set forth in this SECTION 1.1, SO
LONG AS such projections have been approved by Administrative
Agent, and in the case of
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adjustments to Capital Expenditures, have been approved by
Administrative Agent, Co-Syndication Agents, and Co-
Documentation Agents.
BUSINESS DAY means (a) for all purposes, any day
OTHER THAN Saturday, Sunday, and any other day on which
commercial banking institutions are required or authorized by
Law to be closed in Dallas, Texas, or in New York, New York,
and (b) in addition to the foregoing, in respect of any
Eurodollar Rate Borrowing, a day on which dealings in United
States dollars are conducted in the London interbank market
and commercial banks are open for international business in
London.
CAPITAL EXPENDITURES means an expenditure (determined
in accordance with GAAP) by a Company for any fixed asset
owned by such Company for use in the operations of such
Company having a useful life of more than one year, or any
improvements or additions thereto, including the direct or
indirect acquisition of such assets, and including any
obligations to pay rent or other amounts under a Capital
Lease; PROVIDED, HOWEVER, that Capital Expenditures shall not
include (a) acquisitions of stock or assets which are made in
accordance with SECTION 9.20, (b) expenditures for repairs or
replacements of fixed assets made with insurance proceeds in
accordance with SECTION 9.8, or (c) the Purchase Price of any
Authorization to build and operate a PCS System acquired in
accordance with the requirements for a Permitted Acquisition
that is a Permitted PCS License Acquisition.
CAPITAL LEASE means any capital lease or sublease
which should be capitalized on a balance sheet in accordance
with GAAP.
CASH EQUIVALENTS means:
(a) Readily marketable, direct, full faith and credit
obligations of the United States of America, or obligations guaranteed
by the full faith and credit of the United States of America, maturing
within not more than one year from the date of acquisition;
(b) Short term certificates of deposit and time deposits,
which mature within one year from the date of issuance and which are
fully insured by the Federal Deposit Insurance Corporation;
(c) Commercial paper maturing in 365 days or less from
the date of issuance and rated EITHER "P-1" by ▇▇▇▇▇'▇ Investors
Service, Inc. ("MOODY'S"), or "A-1" by Standard and Poor's Rating Group
(a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., "S&P");
(d) Debt instruments of a domestic issuer which mature in
one year or less and which are rated "A" or better by Moody's or S&P on
the date of acquisition of such investment; and
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(e) Demand deposit accounts which are maintained in the
ordinary course of business.
CELLULAR ACQUISITION means Acquisitions by any
Company of businesses which are engaged in the Cellular
Business.
CELLULAR ASSETS means any Cellular System or
Franchise Interest owned directly or indirectly by any Person
and used in connection with such Person's Cellular Business.
CELLULAR BUSINESS means the business of owning or
operating one or more Cellular Systems and other business
directly related thereto.
CELLULAR ENTITY means a Cellular Licensee or Cellular
Permittee.
CELLULAR LICENSEE means any Person that is authorized
to own, control, and operate a Cellular System.
CELLULAR PERMITTEE means a Person that is authorized
by the FCC to construct a Cellular System.
CELLULAR SYSTEM means a domestic public cellular
radio telecommunications service system licensed under PART 22
of the rules promulgated by the FCC.
CHANGE OF CONTROL means the occurrence of any of the
following:
(a) If Parent is a limited liability company, EITHER
(i) So long as no ▇▇▇▇▇▇ Change of Control has
occurred, Communications (and its Affiliates) and AWS (and its
Affiliates) cease (A) each to have the Right to appoint two
Management Committee Representatives and (B) to own, in the
aggregate, 80% of the economic interests in Parent and have
the Right to appoint all Management Committee Representatives,
UNLESS AWS and its Affiliates own 50% of the economic
interests in Parent and have the Right to appoint all
Management Committee Representatives; or
(ii) After a ▇▇▇▇▇▇ Change of Control has
occurred, AWS and its Affiliates cease to own 50% of the
economic interests in Parent and have the Right to appoint all
Management Committee Representatives; or
(b) On and after the date upon which Parent converts to a
corporation, EITHER:
(i) So long as no ▇▇▇▇▇▇ Change of Control has
occurred, Communications (and its Affiliates) and AWS (and its
Affiliates) cease (A) to own, individually, 30% of the voting
power of all of the Voting Stock of Parent
CREDIT AGREEMENT
----------------
and (B) to own, in the aggregate, the Voting Stock of Parent
having at least 75% of the voting power of all of the Voting
Stock of Parent, UNLESS AWS and its Affiliates own 75% of the
aggregate voting power of the Voting Stock of Parent; or
(ii) After a ▇▇▇▇▇▇ Change of Control has occurred,
AWS and its Affiliates cease to own 75% of the aggregate
voting power of the Voting Stock of Parent; or
(c) Parent ceases to own 100% of the issued and
outstanding capital stock of, or other ownership interests in,
Borrower; or
(d) Except as otherwise permitted by this Agreement, any
Company ceases to own the percentage of issued and outstanding equity
interests issued by its Subsidiaries as reflected on SCHEDULE 8.3 on
the Closing Date, or if thereafter acquired, as determined on the
consummation date of the related Acquisition.
CLOSING DATE means the date upon which this Agreement
has been executed by Borrower, Lenders, and Administrative
Agent and all conditions precedent specified in SECTION 7.1
have been satisfied or waived.
CO-AGENTS means, collectively Dresdner Bank AG New
York and Grand Cayman Branches and Banque Nationale de Paris
CO-DOCUMENTATION AGENTS means CIBC World Markets
Corp. and Barclays Bank PLC, and their respective permitted
successors or assigns as "CO-DOCUMENTATION AGENTS" under the
Loan Documents.
CO-SYNDICATION AGENTS means ▇▇▇▇▇▇ Commercial Paper
Inc. and TD Securities (USA) Inc. and their respective
permitted successors or assigns as "CO-SYNDICATION AGENTS"
under the Loan Documents.
CODE means the INTERNAL REVENUE CODE OF 1986, as
amended, TOGETHER WITH the rules and regulations promulgated
thereunder.
COLLATERAL means all of the items and types of
property described as "COLLATERAL" in now existing or
hereafter created Collateral Documents and all cash and
non-cash proceeds thereof.
COLLATERAL DOCUMENTS means all security agreements,
pledge agreements, financing statements, assignments of
partnership interests, guaranties, mortgages, and deeds of
trust at any time delivered to Administrative Agent to create
or evidence Liens securing the Obligation, TOGETHER WITH all
reaffirmations, amendments, and modifications thereof or
supplements thereto.
CREDIT AGREEMENT
----------------
COMMITMENT PERCENTAGE means, at any date of
determination, for any Lender with respect to a particular
Facility, the proportion (stated as a percentage) that its
Committed Sum for such Facility bears to the aggregate
Committed Sums of all Lenders for such Facility.
COMMITTED SUM means (a) for any Revolver Lender, with
respect to the Revolver Facility, at any date of determination
occurring prior to the Termination Date for the Revolver
Facility, the amount stated beside such Lender's name under
the heading for the Revolver Facility on the most-recently
amended SCHEDULE 2.1 to this Agreement (which amount is
subject to increase, reduction, or cancellation in accordance
with the Loan Documents), and (b) for any other Lender, with
respect to any Term Loan Facility, at any date of
determination occurring prior to the initial Borrowing Date
for such Term Loan Facility, the amount stated beside such
Lender's name under the heading for the applicable Term Loan
Facility on the most-recently amended SCHEDULE 2.1 to this
Agreement (which amount is subject to increase, reduction, or
cancellation in accordance with the Loan Documents).
COMMUNICATIONS means ▇▇▇▇▇▇ Communications
Corporation, an Oklahoma corporation.
COMMUNICATIONS ACT means, collectively, THE FEDERAL
COMMUNICATIONS ACT OF 1934, as amended from time to time, and
the rules and regulations in effect at any time thereunder.
COMPANIES means, on any date of determination
thereof, Parent and each of its Subsidiaries, OTHER THAN
Laredo Joint Venture and, UNLESS AND UNTIL the conditions set
forth in ITEM 2 of SCHEDULE 7.1A have been met, ▇▇▇▇▇
CellTelCo Partnership; and COMPANY means, on any date of
determination, Parent or any of its Subsidiaries, OTHER THAN
Laredo Joint Venture and, UNLESS AND UNTIL the conditions set
forth in ITEM 2 of SCHEDULE 7.1A have been met, ▇▇▇▇▇
CellTelCo Partnership.
COMPLIANCE CERTIFICATE means a certificate signed by
a Responsible Officer of Borrower and a Responsible Officer of
Parent, substantially in the form of EXHIBIT E-1.
CONSEQUENTIAL LOSS means any loss, cost, or expense
(including loss of anticipated profit) which any Lender may
reasonably incur in respect of a Eurodollar Rate Borrowing as
a consequence of any event described in SECTION 4.5.
CONVERSION NOTICE means a request made pursuant to
SECTION 3.11, substantially in the form of EXHIBIT B-2.
CREDIT AGREEMENT
----------------
COST ALLOCATION means, with respect to services
rendered by Manager pursuant to the Management Agreement,
those common costs which benefit the Companies (including, but
not limited to, allocations of Manager's overhead and costs of
services directly allocable to the Companies that are
performed by Manager's employees and Affiliates), the
allocation of which shall be (a) calculated in the same manner
and using the same assumptions that Manager employs from time
to time for making allocations among its other wireless
communications systems, and (b) EITHER (i) based upon the
percentage of Pops or subscribers in the geographic area
served by the Companies' Systems compared to the then-current
Pops or subscribers in all geographic areas in which Manager
controls or manages wireless communication systems, or (ii)
solely with respect to engineering and technical costs,
allocated on a per cell site percentage basis.
CURRENT FINANCIALS means, at the time of any
determination thereof, the more recently delivered to Lenders
of EITHER (a) (i) the unaudited Financial Statements for the
fiscal quarter ended September 30, 1999, calculated on a
consolidated basis for American and its Subsidiaries; (ii) the
audited Financial Statements for the fiscal year ended
December 31, 1998, calculated on a consolidated basis for
American and its Subsidiaries; (iii) the unaudited PRO FORMA
balance sheet of the Companies on a consolidated basis, which
balance sheet shall be prepared assuming that the American
Merger and the incurrence of Debt under this Agreement
occurred on December 31, 1999; (iv) the unaudited PRO FORMA
income statement of the Companies on a consolidated basis
(including a calculation of Operating Cash Flow for such
entities) for the three-fiscal quarter period ending on
September 30, 1999, which income statement gives effect to the
American Merger and the incurrence of Debt under this
Agreement; (v) the unaudited PRO FORMA income statement of the
Companies on a consolidated basis (including a calculation of
Operating Cash Flow for such entities) for the two-fiscal
quarter period ending on December 31, 1999, which income
statement gives effect to the American Merger and the
incurrence of Debt under this Agreement; or (b) the Financial
Statements required to be delivered under SECTIONS 9.3(a) or
9.3(b), as the case may be, calculated on a consolidated basis
for the Companies.
DCS means ▇▇▇▇▇▇ Cellular Systems, Inc., an Oklahoma
corporation.
DEBT means (WITHOUT DUPLICATION), for any Person, the
SUM of the following: (a) all liabilities, obligations, and
indebtedness of such Person which in accordance with GAAP
should be classified upon such Person's balance sheet as
liabilities in respect of (i) money borrowed, including,
without limitation, the Principal Debt, (ii) obligations of
such Person under Capital Leases, (iii) payment obligations of
such Person under non-compete agreements, and (iv) obligations
of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations, and
obligations under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of
business); (b) all obligations of the type referred to in
CLAUSES (a)(i) through (a)(iii) preceding of other Persons for
the payment of which such Person is responsible or
CREDIT AGREEMENT
----------------
liable as obligor, guarantor, or otherwise; (c) all
obligations of the type referred to in CLAUSES (a)(i)
through CLAUSE (a)(iii) and CLAUSE (b) preceding of other
Persons secured by any Lien on any property or asset of such
Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be
the lesser of the value of such property or assets or the
amount of the obligation so secured; (d) the face amount of
all letters of credit and banker's acceptances issued for
the account of such Person, and WITHOUT DUPLICATION, all
drafts drawn and unpaid thereunder; and (e) net payments
under Financial ▇▇▇▇▇▇.
DEBT ISSUANCE means Debt of any Company for borrowed
money issued or incurred after the Closing Date, OTHER THAN
Permitted Debt under SECTION 9.12.
DEBT SERVICE means, calculated for the Companies on a
consolidated basis, EITHER (a) on any date of determination on
or prior March 30, 2001, the SUM of (i) Annualized Interest
Expense, PLUS (ii) the aggregate amount of all scheduled
principal payments made on the Debt of the Companies during
the most-recently ended Rolling Period, or (b) on any date of
determination occurring on and after March 31, 2001, the SUM
of (i) Interest Expense for the Rolling Period most recently
ended, PLUS (ii) the aggregate amount of all scheduled
principal payments made on the Debt of the Companies during
the most-recently ended Rolling Period.
DEBT SERVICE COVERAGE RATIO means, with respect to
the Companies on a consolidated basis, EITHER (a) at any date
of determination on or prior to June 30, 2000, the ratio of
Annualized Operating Cash Flow to Debt Service or (b) at any
date of determination occurring after June 30, 2000, the ratio
of Operating Cash Flow to Debt Service.
DEBTOR RELIEF LAWS means the BANKRUPTCY CODE of the
United States of America and all other applicable liquidation,
conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, fraudulent transfer
or conveyance, suspension of payments, or similar Laws from
time to time in effect affecting the Rights of creditors
generally.
DECLINING B LENDER is defined in SECTION 3.3(f)(i).
DECLINING C LENDER is defined in SECTION 3.3(f)(ii).
DEFAULT is defined in SECTION 10.
DEFAULT RATE means a per annum rate of interest equal
from day to day to the LESSER of (a) the SUM of the Base Rate
PLUS the Applicable Margin for Base Rate Borrowings for the
relevant Facility PLUS 2% AND (b) the Maximum Rate.
CREDIT AGREEMENT
----------------
DISTRIBUTION for any Person means, with respect to
any shares of any capital stock membership interest, or any
other equity securities issued by such Person, (a) the
retirement, redemption, purchase, or other acquisition for
value of any such securities, (b) the declaration or payment
of any dividend or distribution on or with respect to any such
securities, and (c) any other payment by such Person with
respect to such securities.
▇▇▇▇▇▇ CHANGE OF CONTROL means the occurrence of any
of the following:
(a) The sale of all or substantially all of the
stock, business, or assets of Communications;
(b) The ▇▇▇▇▇▇ Group ceases to be the exclusive
beneficial owner of at least 35% of the outstanding capital
stock of Communications on a fully diluted basis; or
(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and the ▇▇▇▇▇▇ Group cease
to have, directly or indirectly, the exclusive Right to vote
not less than 35% of the voting interests in Communications.
▇▇▇▇▇▇ GROUP means ▇▇▇▇▇▇ ▇▇ Limited Partnership,
RLD, Inc., The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Family Trust, The
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Family Trust, and The ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ Irrevocable Family Trust.
DOLLARS and the symbol $ means lawful money of the
United States of America.
DOMESTIC SUBSIDIARY of any Person means a Subsidiary
of such Person that is organized or incorporated under the
Laws of a jurisdiction of the United States, OTHER THAN a
direct or indirect Subsidiary of a Foreign Subsidiary of such
Person.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an
Affiliate of a Lender (SO LONG AS (i) such assignment is not
made in conjunction with the sale of such Affiliate and (ii)
such Affiliate remains an Affiliate of such Lender); (c) an
Approved Fund of the assigning Lender; and (d) any other
Person approved by Administrative Agent (which approval will
not be unreasonably withheld or delayed by Administrative
Agent) and (UNLESS a Default or Potential Default has occurred
and is continuing at the time any assignment is effected in
accordance with SECTION 13.13) Borrower (which approval will
not be unreasonably withheld or delayed by Borrower and which
approval will be deemed given by Borrower if no objection is
received by the assigning Lender and Administrative Agent from
Borrower within five Business Days after notice of such
proposed assignment has been provided by the assigning Lender
to Borrower); PROVIDED, HOWEVER, that neither Borrower nor any
Affiliate of Borrower shall qualify as an Eligible Assignee.
CREDIT AGREEMENT
----------------
ELIGIBLE SUCCESSOR MANAGER means any Person that (a)
currently manages and has managed for the most recent three
years one or more contiguous Cellular Systems with not less
than 5,000,000 Pops, (b) currently manages and has managed for
the most recent three years Cellular Systems with not less
than 400,000 subscribers being served by such Cellular
Systems, (c) is not a competitor of any Company in any
territory covered by any Company's Systems, and (d) is subject
to a Management Agreement reasonably acceptable to
Administrative Agent.
EMPLOYEE PLAN means an employee pension benefit plan
covered by TITLE IV of ERISA or subject to the minimum funding
standards under SECTION 412 of the Code and established or
maintained by any Company or ERISA Affiliate, but not
including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that
relates to (a) the condition or protection of air,
groundwater, surface water, soil, or other environmental
media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of
any pollutants, contaminants, wastes, substances, and
Hazardous Substances, including, without limitation, the
Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 ET SEQ.) ("CERCLA"), the
Clean Air Act (42 U.S.C. Section 7401 ET SEQ.), the Federal
Water Pollution Control Act, as amended by the Clean Water Act
(33 U.S.C. Section 1251 ET SEQ.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. Section 136 ET SEQ.),
the Emergency Planning and Community Right to Know Act of 1986
(42 U.S.C. Section 11001 ET SEQ.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801 ET SEQ.), the
National Environmental Policy Act of 1969 (42 U.S.C. Section
4321 ET SEQ.), the Oil Pollution Act (33 U.S.C. Section 2701
ET SEQ.), the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 ET SEQ.), the Rivers and Harbors Act (33
U.S.C. Section 401 ET SEQ.), the Safe Drinking Water Act (42
U.S.C. Section 201 and Section 300f ET SEQ.), the Solid Waste
Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984 (42 U.S.C. Section 6901 ET SEQ.), the Toxic
Substances Control Act (15 U.S.C. Section 2601 ET SEQ.), and
analogous state and local Laws, as any of the foregoing may
have been and may be amended or supplemented from time to
time, and any analogous future enacted or adopted Law, or (d)
the Release or threatened Release of Hazardous Substances.
ENVIRONMENTAL LIABILITY means any obligation,
liability (including, without limitation, any strict
liability), loss, fine, penalty, charge, Lien, damage, cost,
or expense of any kind to the extent that it results (a) from
any violation of or any obligation or liability under any
Environmental Law, (b) from the presence, Release, or
threatened Release of any Hazardous Substance, or (c) from
actual or threatened damages to natural resources.
ENVIRONMENTAL PERMIT means any permit, license, or
other Authorization from any Governmental Authority that is
required under any Environmental Law for the lawful conduct of
any business, process, or other activity.
EQUITY ISSUANCE means the issuance on and after the
Closing Date by any Company of any shares of any class of
stock, warrants, membership interests, or other equity
interests, OTHER THAN (a) present and future shares of stock,
options, or warrants issued to employees, directors, or
consultants of the Companies under any Company's stock option
plan or other benefit or compensation plans or arrangements,
(b) stock issued upon the exercise of any such options or
warrants, and (c) any shares of any class of stock, warrants,
or other equity interests issued from a Company solely to
another Company, SO LONG AS, no Default or Potential Default
exists or arises as a result thereof.
ERISA means the EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, as amended, and the regulations and rulings
thereunder.
ERISA AFFILIATE means any company or trade or
business (whether or not incorporated) which, for purposes of
TITLE IV of ERISA, is (or has been within the past six years)
a member of any Company's controlled group or which is (or has
been within the past six years) under common control with any
Company within the meaning of SECTION 414(b), (c), (m), or (o)
of the Code.
EURODOLLAR RATE means, for any Eurodollar Rate
Borrowing for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Dow ▇▇▇▇▇ Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such
rate is not available, the term "EURODOLLAR RATE" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO
Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period for a term
comparable to such Interest Period; PROVIDED, HOWEVER, if more
than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR RATE BORROWING means a Borrowing bearing
interest at the SUM of the Adjusted Eurodollar Rate PLUS the
Applicable Margin for Eurodollar Rate Borrowings.
EXCESS CASH FLOW means on any date of determination
with respect to the fiscal year then most recently ended,
Operating Cash Flow of the Companies on a consolidated basis
PLUS any net decrease in Working Capital of the Companies on
a consolidated basis, LESS the SUM of, WITHOUT DUPLICATION,
(a) Capital Expenditures made by the Companies during such
fiscal year which were permitted to be made under the terms
of the Loan Documents, (b) required payments of principal on
Permitted Debt made by the Companies during such fiscal year
(OTHER THAN payments made pursuant to SECTION 3.3(b)), (c)
the aggregate Taxes actually paid in cash by the Companies
during such fiscal year, (d) Distributions made by the
Companies during such fiscal year to the extent permitted by
the Loan Documents (but expressly excluding the amount of any
Distributions paid in accordance with SECTION 9.21(f); (e)
Interest Expense paid by the Companies during such fiscal
year or accrued during such fiscal year in compliance with
the Loan Documents, SO LONG AS such accrued interest is
actually paid by the Companies during such fiscal year or the
first two calendar months of the following fiscal year in
compliance with the Loan Documents; and (f) any net increase
in Working Capital of the Companies.
EXHIBIT means an exhibit to this Agreement UNLESS
otherwise specified.
EXISTING DEBT is defined in SECTION 9.12(f).
EXISTING SENIOR NOTES means the 10 1/2% Senior Notes
due 2008 issued by American.
FACILITIES means, collectively, the Revolver Facility
and the Term Loan Facilities; FACILITY means, any of the
Revolver Facility or any Term Loan Facility.
FCC means the Federal Communications Commission and
any successor regulatory body.
FEDERAL FUNDS RATE means, for any day, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of
1%) determined (which determination shall be conclusive and
binding, absent manifest error) by Administrative Agent to be
equal to the weighted average of the rates on overnight
Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers on such day,
as published by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; PROVIDED THAT (a) if
such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Administrative Agent
(in its individual capacity) on such day on such transactions
as determined by Administrative Agent (which determination
shall be conclusive and binding, absent manifest error).
FINANCIAL HEDGE means a swap, collar, floor, cap, or
other contract which is intended to reduce or eliminate the
risk of fluctuations in interest rates and
which complies with the applicable requirements of SECTION
9.27(c) and is otherwise in compliance with the requirements
of the Loan Documents.
FINANCIAL STATEMENTS means balance sheets, statements
of operations, statements of shareholders' equity, and
statements of cash flows prepared in accordance with GAAP,
which statements of operations and statements of cash flows
shall be in comparative form to the corresponding period of
the preceding fiscal year, and which balance sheets and
statements of shareholders' equity shall be in comparative
form to the prior fiscal year-end figures.
FIXED CHARGE COVERAGE RATIO means, with respect to
the Companies, on any date of determination with respect to
the most recently ended Rolling Period, the ratio of: (a) the
Operating Cash Flow of the Companies MINUS the amount paid for
Capital Expenditures by the Companies to (b) Fixed Charges.
FIXED CHARGES means, with respect to the Companies,
on any date of determination, the SUM of (i) all
regularly-scheduled principal payments with respect to Debt
required to be paid, (ii) cash Interest Expense, (iii) cash
Taxes paid or payable by the Companies, and (iv) Distributions
paid in cash by any Company to the "MEMBERS" or shareholders
of Parent.
FOREIGN SUBSIDIARY of any Person means a Subsidiary
of such Person that is organized or incorporated under the
Laws of a jurisdiction OTHER THAN a jurisdiction of the United
States.
FRANCHISE INTEREST means a direct or indirect
ownership in any Person that is a Cellular Entity.
GAAP means generally accepted accounting principles
of the Accounting Principles Board of the American Institute
of Certified Public Accountants and the Financial Accounting
Standards Board which are applicable from time to time.
GOVERNMENTAL AUTHORITY means any (a) local, state,
municipal, or federal judicial, executive, or legislative
instrumentality, (b) private arbitration board or panel, or
(c) central bank.
GUARANTOR means any Person, including, but not
limited to, each Company (OTHER THAN Borrower), which
undertakes to be liable for all or any part of the Obligation
by execution of a Guaranty or otherwise.
GUARANTY means (a) a Guaranty in substantially the
form and upon the terms of EXHIBIT C, executed and delivered
by any Person pursuant to the requirements of the Loan
Documents; and (b) any amendments, modifications, supplements,
restatements, ratifications, or reaffirmations of any Guaranty
made in accordance with the Loan Documents.
HAZARDOUS SUBSTANCE means (a) any substance that is
designated, defined, or classified as a hazardous waste,
hazardous material, pollutant, contaminant, or toxic or
hazardous substance, or that is otherwise regulated, under any
Environmental Law, including without limitation, any hazardous
substance within the meaning of SECTION 101(14) of CERCLA, (b)
petroleum, oil, gasoline, natural gas, fuel oil, motor oil,
waste oil, diesel fuel, jet fuel, and other petroleum
hydrocarbons, (c) asbestos and asbestos-
containing materials in any form, (d) polychlorinated
biphenyls, or (e) urea formaldehyde foam.
INTERCOMPANY ACQUISITION means (i) a merger,
consolidation, amalgamation, or combination by any Company
with another Company permitted by SECTION 9.25, or (ii) sales,
assignments, transfers, or dispositions of the capital stock
(or other ownership interests) of a Company to the extent
transferred by one Company to another Company as permitted
under SECTION 9.25; and (iii) sales or dispositions of all or
substantially all the assets of a Company to the extent
transferred by one Company to another Company as permitted
under SECTION 9.23(e).
INTEREST COVERAGE RATIO means, with respect to the
Companies on a consolidated basis, EITHER (a) at any date of
determination on or prior to June 29, 2000, the ratio of (i)
Annualized Operating Cash Flow to (ii) Annualized Interest
Expense; (b) at any date of determination on and after June
30, 2000, but on or prior to March 30, 2001, the ratio of (i)
Operating Cash Flow for the Rolling Period most recently ended
to (ii) Annualized Interest Expense; or (c) at any date of
determination occurring on and after March 31, 2001, the ratio
of Operating Cash Flow to Interest Expense for the Rolling
Period most recently ended.
INTEREST EXPENSE means, for any period of calculation
thereof, for any Person, the aggregate amount of all interest
(including commitment fees) on all Debt of such Person,
whether paid in cash or accrued as a liability and payable in
cash during such period (including, without limitation,
imputed interest on Capital Lease obligations; the
amortization of any original issue discount on any Debt; the
interest portion of any deferred payment obligation; all
commissions, discounts, and other fees and charges owed with
respect to letters of credit or bankers' acceptance financing;
net costs associated with Financial ▇▇▇▇▇▇; the interest
component of any Debt that is guaranteed or secured by such
Person), and all cash premiums or penalties for the repayment,
redemption, or repurchase of Debt (OTHER THAN such premiums or
penalties for the redemption or tender for the Debt under the
Existing Senior Notes paid on the Closing Date).
INTEREST PERIOD is determined in accordance with
SECTION 3.10.
LAREDO JOINT VENTURE means the Texas/Illinois
Cellular Limited Partnership, a Delaware limited partnership.
LAREDO JOINT VENTURE SALE means the sale of all of
the Companies' Rights, titles, and interests in the Laredo
Joint Venture pursuant to and in accordance with the "PUT"
provisions in the Amended and Restated Agreement of Limited
Partnership of the Laredo Joint Venture, dated as of December
1, 1995, among Southwestern ▇▇▇▇ Mobile Systems, Inc.,
Cellular Information Systems of Laredo, Inc., and Pricellular
Corporation.
LAWS means all applicable statutes, laws, treaties,
ordinances, tariff requirements, rules, regulations, orders,
writs, injunctions, decrees, judgments, opinions, or
interpretations of any Governmental Authority.
LC means the standby letter(s) of credit issued
hereunder in the form agreed upon among Borrower,
Administrative Agent, and the beneficiary thereof at the time
of
issuance thereof and participated in by Lenders pursuant to
the terms and conditions of SECTION 2.5.
LC AGREEMENT means a letter of credit application and
agreement (in form and substance satisfactory to
Administrative Agent) submitted by Borrower to Administrative
Agent for an LC for its own account (and for its benefit or
the benefit of any other Company), PROVIDED THAT this
Agreement shall control any conflict between this Agreement
and any such LC Agreement.
LC EXPOSURE means, at any time and WITHOUT
DUPLICATION, the SUM of (a) the aggregate undrawn portion of
all uncancelled and unexpired LCs PLUS (b) the aggregate
unpaid reimbursement obligations of Borrower in respect of
drawings of drafts under any LC.
LC REQUEST means a request pursuant to SECTION
2.5(a), substantially in the form of EXHIBIT B-3.
LC SUBFACILITY means a subfacility of the Revolver
Facility for the issuance of LCs as described in and subject
to the limitations of SECTION 2.5, under which the LC Exposure
(a) may never collectively exceed $50,000,000 and (b) TOGETHER
WITH the Revolver Principal Debt may never exceed the Revolver
Commitment.
LENDERS means, on any date of determination, the
financial institutions named on SCHEDULE 2.1 (as the same may
be amended from time to time by Administrative Agent to
reflect the assignments made in accordance with SECTION
13.13(b)), and, subject to the terms and conditions of this
Agreement, their respective successors and assigns (but not
any Participant who is not otherwise a party to this
Agreement); PROVIDED THAT, solely for purposes of any
Collateral Document and SECTIONS 12, 3.13, and 3.14, "LENDERS"
shall also include any Lender or Affiliate of a Lender who is
party to a Financial Hedge with any Company, and their
respective successors and assigns (for purposes hereof, each
Lender shall be deemed to have entered into this Agreement for
and on behalf of any Affiliate now or hereafter party to a
Financial Hedge with any Company).
LEVERAGE RATIO means, with respect to the Companies
on a consolidated basis, EITHER (a) on any date of
determination on or prior to June 30, 2000, the ratio of (i)
the aggregate principal amount of all Debt outstanding to (ii)
Annualized Operating Cash Flow, or (b) on any date of
determination occurring after June 30, 2000, the ratio of (i)
the aggregate principal amount of all Debt outstanding to (ii)
Operating Cash Flow.
LIEN means any lien, mortgage, security interest,
pledge, assignment, charge, title retention agreement, or
encumbrance of any kind, and any other Right of or arrangement
with any creditor (OTHER THAN under or relating to
subordination or other intercreditor arrangements) to have its
claim satisfied out of any property or assets, or the proceeds
therefrom, prior to the general creditors of the owner
thereof.
LITIGATION means any action by or before any
Governmental Authority.
LLC AGREEMENT means that certain Second Amended and
Restated Limited Liability Company Agreement of Parent between
AT&T Wireless Services JV Co. and ▇▇▇▇▇▇ ▇▇ Company, dated as
of February 25, 2000, TOGETHER WITH all amendments,
modifications, or supplements thereto (including, but not
limited to the Amended and
Restated Supplemental Agreement among AWS, Communications,
▇▇▇▇▇▇ ▇▇ Limited Partnership, and other parties which are
signatories thereto, dated as of February 25, 2000) effected
in accordance with SECTION 9.29.
LOAN ACCOUNT means any record (including, without
limitation, the Register) maintained by any Lender in the
ordinary course of business or by Administrative Agent
evidencing the Principal Debt owed to each Lender.
LOAN DOCUMENTS means (a) this Agreement, the Notes,
the Collateral Documents, LCs, and LC Agreements, (b) all
agreements, documents, or instruments in favor of Agents or
Lenders ever delivered pursuant to this Agreement or otherwise
delivered in connection with all or any part of the
Obligation, and (c) any and all future renewals, extensions,
restatements, reaffirmations, or amendments of, or supplements
to, all or any part of the foregoing.
MANAGEMENT AGREEMENT means the Amended and Restated
Management Agreement between DCS and Parent, dated as of
February 25, 2000, TOGETHER WITH all amendments,
modifications, or replacements thereto, effected in accordance
with SECTION 9.29.
MANAGEMENT COMMITTEE means the Management Committee
of Parent as defined in and created in accordance with the LLC
Agreement.
MANAGEMENT COMMITTEE REPRESENTATIVE means any
individual serving as a "REPRESENTATIVE" (as defined in the
LLC Agreement) on the Management Committee in accordance with
the LLC Agreement.
MANAGEMENT EXPENSES means, on any date of
determination, the amount of all unpaid reimbursements for
out-of-pocket expenses incurred and related Cost Allocations
reasonably allocated by Manager in the performance of its
duties under the Management Agreement.
MANAGER means DCS or any successor thereto which has
satisfied the criteria of an Eligible Successor Manager.
MANAGING AGENTS means, collectively, ABN AMRO Bank
N.V., The Bank of New York, The Bank of Nova Scotia, Bankers
Trust Company, CoBank, ACB, PNC Bank, National Association,
Union Bank of California, N.A., and Westdeutsche Landesbank
Girozentrale, New York Branch.
MATERIAL ADVERSE EVENT means any set of one or more
circumstances or events which, individually or collectively,
could reasonably be expected to result in any (a) material
impairment of the ability of the Companies to perform any of
their payment or other material obligations under the Loan
Documents or the ability of Administrative Agent or any Lender
to enforce any such obligations or any of their respective
Rights under the Loan Documents, (b) material and adverse
effect on the business, properties, condition (financial or
otherwise), or results of operations of the Companies, taken
as a whole, or (c) Default or Potential Default.
MATERIAL AGREEMENT means (a) the LLC Agreement, (b)
the Management Agreement, (c) the Roaming Agreements, and (iv)
any other contract material to the
respective business of any Company (including with respect to
the Systems) including any roaming agreement, vendor
financing agreement, purchase agreement for
telecommunications assets, interconnection agreement, long
distance agreement, or any other written or oral agreement,
contract, commitment, or understanding to which any Company
is a party, by which such Company is directly or indirectly
bound, or to which any assets of such Company may be subject
(excluding purchase orders for material and inventory in the
ordinary course of business) and which involves revenue
payable to any Company in excess of $20,000,000 in the
aggregate during any 12-month period, or financial
obligations of any Company in excess of $10,000,000 in the
aggregate during any 12-month period.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean,
for each Lender, the maximum non- usurious amount and the
maximum non-usurious rate of interest which, under applicable
Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
MEMBER shall have the meaning given such term in the
LLC Agreement.
MINORITY INTEREST means, on any date of
determination, that portion of the total ownership of any
Company that is not owned by another Company.
MULTIEMPLOYER PLAN means a multiemployer plan as
defined in SECTIONS 3(37) or 4001(a)(3) of ERISA or SECTION
414(f) of the Code to which any Company or ERISA Affiliate is
making, or has made, or is accruing, or has accrued, an
obligation to make contributions or has, within any of the
preceding five plan years, made or accrued an obligation to
make contributions.
NET CASH PROCEEDS means (a) with respect to any
Significant Sale, any Permitted Asset Swap, the Tower
Sale-Leaseback, or the Laredo Joint Venture Sale, cash (freely
convertible into Dollars) (including any cash received by way
of deferred payment pursuant to a promissory note or
otherwise, but only as and when received) received by any
Company in connection with and as consideration therefor, on
or after the date of consummation of such transaction, AFTER
(i) deduction of Taxes payable in connection with or as a
result of such transaction, (ii) payment of all usual and
customary brokerage commissions and all other reasonable fees
and expenses related to such transaction (including, without
limitation, reasonable attorneys' fees and closing costs
incurred in connection with such transaction), (iii) deduction
of appropriate amounts required to be reserved (in accordance
with GAAP) for post-closing adjustments by any Company in
connection with such transaction, against any liabilities
retained by any Company after such transaction, which
liabilities are associated with the asset or assets being
sold, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification
obligations associated with such transaction, and (iv)
deduction for the amount of any Debt (OTHER THAN the
Obligation or Debt owed to other Companies) secured by the
respective asset or assets being sold, which Debt is required
to be repaid as a result of such transaction; (b) with respect
to any Debt Issuance, cash (freely convertible into Dollars)
received, on or after the date of incurrence of such Debt, by
any Company from the incurrence of such Debt AFTER (i) payment
of all reasonable attorneys' fees and usual and customary
underwriting commissions, closing costs, and other reasonable
expenses associated with such Debt Issuance, (ii) deduction of
all deposits, escrow amounts, or other reserves required to be
maintained by any Company in connection with such Debt, and
(iii)
deductions for the amount of any other Debt (OTHER THAN
the Obligation or Debt owed to other Companies) which is
required to be repaid concurrently with or otherwise as a
result of the incurrence of such Debt; and (c) with respect to
any Equity Issuance, cash (freely convertible into Dollars)
(including any cash received by way of deferred payment
pursuant to a promissory note, or otherwise, but only as and
when received) received, on or after the date of such Equity
Issuance, by any Company from such Equity Issuance, net of
usual and customary transaction costs and expenses and Assumed
Taxes; PROVIDED, HOWEVER, in the case of Taxes that are
deductible under CLAUSE (a)(i) preceding or post-closing
adjustments under CLAUSE (a)(iii) preceding, but which Taxes
or post-closing adjustments have not actually been paid or are
not yet payable, the Company selling such assets may deduct
from the cash proceeds an amount (the "RESERVED AMOUNT") equal
to the amount reserved in accordance with GAAP as a reasonable
estimate for such Taxes or post-closing adjustments, SO LONG
AS, at the time such Taxes or post-closing adjustments are
actually paid, the amount, if any, by which the Reserved
Amount exceeds the Taxes or post-closing adjustments actually
paid shall constitute additional "NET CASH PROCEEDS" of such
Significant Sale, Permitted Asset Swap, Tower Sale- Leaseback,
or Laredo Joint Venture Sale.
NET INCOME means, for the Companies, as calculated at
any date of determination, with respect to the most recently
ended Rolling Period (UNLESS otherwise indicated), the net
income (or loss) of the Companies from operations for such
period (excluding income from interest, dividends, and
distributions, and non-cash components of income), after
deduction of all expenses, Taxes, and other proper charges for
such period, determined on a consolidated basis in accordance
with GAAP, after eliminating therefrom all extraordinary gains
or losses and all other nonrecurring gains or losses from any
disposition of any System or other assets.
NOTES means, at the time of any determination
thereof, all outstanding and unpaid Revolver Notes, the Term
Notes, and the Swing Line Note.
OBLIGATION means all present and future indebtedness,
liabilities, and obligations, and all renewals and extensions
thereof, or any part thereof, now or hereafter owed to
Administrative Agent, any other Agent, any Lender, or any
Affiliate of any Lender by any Company arising from, by virtue
of, or pursuant to any Loan Document, TOGETHER WITH all
interest accruing thereon, fees, costs, and expenses
(including, without limitation, all reasonable attorneys' fees
and expenses incurred in the enforcement or collection
thereof) payable under the Loan Documents; PROVIDED THAT, all
references to the "OBLIGATION" in the Collateral Documents and
in SECTIONS 3.12, 3.13, and 3.14, shall, in addition to the
foregoing, also include all present and future indebtedness,
liabilities, and obligations (and all renewals and extensions
thereof or any part thereof) now or hereafter owed to any
Lender or any Affiliate of a Lender arising from, by virtue
of, or pursuant to any Financial Hedge entered into by any
Company.
OPERATING CASH FLOW means, for any Person, as
calculated at any date of determination with respect to the
most recently ended Rolling Period (UNLESS otherwise
indicated), the SUM (WITHOUT DUPLICATION and without giving
effect to any extraordinary losses or gains during such
period) of (a) Net Income during such period, PLUS (b) to the
extent already deducted in computing such Net Income, (i)
income Tax expense (including income Taxes and other Taxes
based upon or measured by income), (ii) Interest Expense
during such period, and (iii) depreciation, amortization, and
other non-cash expense items during such period, in each case
adjusted as required to take into
account any Minority Interests; PROVIDED THAT in determining
Operating Cash Flow of the Companies (and any reference to
"OPERATING CASH FLOW OF THE COMPANIES" in the Loan Documents
shall expressly include or exclude the following adjustments,
as appropriate, and shall be calculated WITHOUT DUPLICATION):
(A) SO LONG AS the Minority Interest in any Company does not
increase on or after the Closing Date from the amounts reflected on
SCHEDULE 8.3, no adjustments for such Minority Interest will be
required; PROVIDED THAT, if the Minority Interest of any Company
increases on and after the Closing Date from the amount shown on
SCHEDULE 8.3, then on and after the date of such increase, adjustments
for all Minority Interests in such Company shall be made in calculating
"OPERATING CASH FLOW;"
(B) In determining Operating Cash Flow for the Companies, such
amount shall be calculated after giving effect to Permitted
Acquisitions and divestitures of the Companies (to the extent permitted
by the Loan Documents) during such period as if such transactions had
occurred on the first day of such period, regardless of whether the
effect is positive or negative; and
(C) Adjustments to Operating Cash Flow to reflect Permitted
Asset Swaps (i) shall be calculated, for any period of determination,
after giving effect to any Permitted Asset Swap consummated during such
period, as if any such Permitted Asset Swap had occurred on the first
day of such period (regardless of whether the effect is positive or
negative), (ii) shall include the Operating Cash Flow of the company,
business, or assets acquired (the "TARGET") by any Company in the
acquisition stage of any Permitted Asset Swap, and (iii) shall exclude
the Operating Cash Flow of any assets of the Companies sold,
transferred, or exchanged or to be sold, transferred, or exchanged in
the disposition stage of such Permitted Asset Swap.
(1) A Permitted Asset Swap shall be deemed to have
been "CONSUMMATED" during a fiscal period if EITHER:
(a) The acquisition and
disposition stages of the Permitted Asset Swap occur
during the same fiscal quarter, or
(b) The acquisition and
disposition stages of the Permitted Asset Swap occur
in two consecutive fiscal quarters, and a Company
either acquires the Target or has Rights pursuant to
a management agreement or other contract (the
"PAYMENT AGREEMENT") to receive all or a portion of
the Operating Cash Flow of the Target during such
fiscal periods; PROVIDED THAT, with respect to
transactions contemplated in this CLAUSE (b):
(i) If the
Companies are not entitled to receive all of
the Operating Cash Flow of the Target as a
result of the Payment Agreement or a
subsequent assignment by any Company, then
appropriate adjustments shall be made to
exclude from the Operating Cash Flow
attributable to the Target any interests
therein retained or acquired by other
Persons;
(ii) If both the
acquisition and disposition stages of the
Permitted Asset Swap are not completed, as
originally contemplated, by the end of two
consecutive fiscal quarters, then
(commencing with the calculations for the
second fiscal quarter), the Operating Cash
Flow of the Companies during the applicable
Rolling Period may only include payments
received by the Companies pursuant
to any Payment Agreement with respect to the
Target, and any other adjustments to
Operating Cash Flow to reflect the Permitted
Asset Swap shall be made in accordance with
CLAUSE (2) below; and
(iii) If the
Payment Agreement is terminated (for any
reason, OTHER THAN as a result of completion
of the acquisition stage of the Permitted
Asset Swap), then any payments ever received
under the Payment Agreement shall be
excluded from calculations of Operating Cash
Flow.
(2) If a Permitted Asset Swap is not consummated
within the same fiscal quarter or two consecutive fiscal
quarters as contemplated in CLAUSE (1) preceding, then each
stage of the Permitted Asset Swap must be considered
separately as an acquisition and as a disposition in
accordance with CLAUSE (B) preceding; PROVIDED THAT, if the
acquisition stage is consummated prior to the disposition
stage, the Operating Cash Flow of the Target may be included
in Operating Cash Flow, but the Operating Cash Flow
attributable to the assets to be transferred, sold, or
exchanged in the disposition stage of the Permitted Asset Swap
must be excluded from any such calculations of Operating Cash
Flow.
OSHA means the OCCUPATIONAL SAFETY AND HEALTH ACT OF
1970, 29 U.S.C. Section 671 ET SEQ.
PARENT means ACC Acquisition LLC, a Delaware limited
liability company (and, to the extent permitted pursuant to
the requirements of SECTION 9.25, any corporation into which
it is converted under Delaware Law).
PARTICIPANT is defined in SECTION 13.13(e).
PBGC means the Pension Benefit Guaranty Corporation,
or any successor thereof, established pursuant to ERISA.
PCS BUSINESS means the business of owning or
operating one or more PCS Systems and other business directly
related thereto.
PCS CAPITAL EXPENDITURES means Capital Expenditures
by any Company expended in connection with the construction or
build-out of a PCS System of such Company.
PCS SYSTEMS means the wireless cellular communication
systems offering "PERSONAL COMMUNICATION SERVICES" authorized
under PART 24 of the FCC Rules (47 C.F.R. Section 24.1 ET
SEQ).
PERMITTED ACQUISITION means, individually and
collectively, (a) the American Merger, (b) Permitted Cellular
System Acquisitions, (c) Permitted Asset Swaps, (d) Permitted
PCS License Acquisitions, and/or (e) any other Acquisition for
which the prior written consent of Required Lenders has been
obtained (each of ITEMS (a) through (d) being referred to
herein as a "SUBJECT TRANSACTION"), SO LONG AS the following
requirements have been satisfied for each Permitted
Acquisition (PROVIDED THAT, with respect to the American
Merger, satisfaction of the requirements under CLAUSES (ii)
and
(iii) shall be satisfied by compliance with the conditions
precedent for closing set forth in SECTION 7.1):
(i) Immediately prior to each Subject Transaction and after
giving effect thereto and all Borrowings under the Revolver Facility to
be made in connection therewith, there is at least $25,000,000 of
availability under the Revolver Commitment;
(ii) As of the closing thereof, each Subject Transaction has
been approved and recommended by the board of directors (or equivalent
body) of the Person to be acquired or from which such business or
license is to be acquired;
(iii) Not less than 14 days prior to the closing of any
Subject Transaction, Borrower shall have delivered to Administrative
Agent a Permitted Acquisition Compliance Certificate, demonstrating PRO
FORMA compliance with the terms and conditions of the Loan Documents,
after giving effect thereto, including (A) PRO FORMA income statement
and balance sheet for the Companies (after giving effect to the Subject
Transaction), and (B) cash flow projections therefor for the period
from the date thereof through the last-to-occur of the then-effective
Termination Dates, demonstrating compliance with the applicable
financial covenants and debt amortization schedules; PROVIDED THAT, for
any Permitted Asset Swap in which the disposition and the acquisition
of the Cellular Assets do not occur during the same fiscal quarter,
Borrower shall deliver (not less than 14 days prior to each of the
closings for the acquisition and disposition stages of the Permitted
Asset Swap) Permitted Acquisition Compliance Certificates (TOGETHER
WITH supporting PRO FORMA income statements, balance sheets, and cash
flow projections) separately demonstrating compliance for both the
acquisition and disposition stages of the Permitted Asset Swap.
(iv) Not less than 30 days prior to the closing thereof,
Borrower shall have delivered to Administrative Agent a copy of the
purchase agreement or asset exchange agreement (including all schedules
and exhibits thereto) relating to the Subject Transaction;
(v) Prior to consummation thereof, Borrower shall have
satisfied the conditions precedent set forth in SECTION 7.2;
(vi) Each Authorization issued by the FCC or any PUC to be
acquired by any Company in or by virtue of any Subject Transaction
shall be valid, binding, enforceable, and subsisting without any
defaults thereunder or enforceable adverse limitations thereon and
shall not be subject to any proceedings or claims opposing the
issuance, development, or use thereof or contesting the validity
thereof UNLESS such Company has entered into an agreement with the
seller of such Authorization protecting such Company from such adverse
limitations, proceedings, or claims, which agreement shall be on terms
and conditions satisfactory to Administrative Agent;
(vii) As of the closing of any Subject Transaction, after
giving effect thereto, the acquiring party must be Solvent and the
Companies, on a consolidated basis, must be Solvent;
(viii) As of the closing of any Subject Transaction
(determined, in the case of Permitted Asset Swaps, at the time of the
closing of each of the acquisition and disposition components thereof),
no Default or Potential Default (including, but not limited to, a
Default pursuant to SECTION 10.8) shall exist or occur as a result
thereof, and after giving effect thereto;
(ix) No Subject Transaction results in the formation or
Acquisition of a Foreign Subsidiary of any Company; and
(ix) No Subject Transaction results in the acquisition of
stock or assets by Parent.
PERMITTED ACQUISITION COMPLIANCE CERTIFICATE means a
certificate signed by a Responsible Officer of Borrower and a
Responsible Officer of Parent, substantially in the form of
EXHIBIT E-2.
PERMITTED ACQUISITION LOAN CLOSING CERTIFICATE means
a certificate signed by a Responsible Officer of Borrower and
a Responsible Officer of Parent, substantially in the form of
EXHIBIT E-3.
PERMITTED ASSET SWAP means an exchange (for
reasonably equivalent value, a portion of which may include
cash) of Cellular Assets owned by a non-affiliated Person for
Cellular Assets owned by any Company, with respect to which
each of the following requirements shall have been satisfied:
(a) The Purchase Price for such Permitted Asset Swap (i) must
be less than or equal to $150,000,000, and (ii), when aggregated with
the Purchase Prices of all other Permitted Cellular System Acquisitions
and Permitted Asset Swaps consummated on and after the Closing Date,
must not exceed $450,000,000 in the aggregate;
(b) The fair market value of the Cellular Assets conveyed by
any Company in any asset swap, when aggregated with the fair market
value of all other Cellular Assets conveyed by the Companies in all
Permitted Asset Swaps consummated on and after the Closing Date does
not exceed $700,000,000 in the aggregate;
(c) As of the date any Cellular Assets of a Company are
conveyed pursuant to an asset swap, the SUM of (i) the Asset Operating
Cash Flow of the Cellular Assets being conveyed by such Company PLUS
(ii) the aggregate Asset Operating Cash Flow attributable to all other
Permitted Assets Swaps consummated on and after the Closing Date does
not exceed 35% of the Operating Cash Flow of the Companies as reflected
on the most-recently delivered Compliance Certificate.
(d) At the time of any Permitted Asset Swap, such Company has
entered into one or more binding agreement or agreements with
non-affiliated Persons to acquire Cellular Assets having an aggregate
fair market value reasonably equivalent to the Cellular Assets to be
exchanged by such Company;
(e) Within six months of the execution of the binding
agreements referred to in CLAUSE (d), Borrower has delivered a
certificate to Administrative Agent stating that the Permitted Asset
Swap has been consummated;
(f) The Cellular Assets acquired pursuant to any such
Permitted Asset Swap EITHER (i) are located (A) within 200 miles of a
Cellular System owned by Borrower or any of its Subsidiaries or (B) SO
LONG AS DCS is the Manager, within 200 miles of a Cellular System owned
by Communications or its Subsidiaries or (ii) include at least
1,000,000 Pops capable of being served in contiguous Cellular Systems;
and
(g) The acquisition of Cellular Assets pursuant to any
Permitted Asset Swap satisfies all requirements for a Permitted
Acquisition.
PERMITTED CELLULAR SYSTEM ACQUISITION means any
Acquisition by any Company of businesses which are engaged in
the domestic cellular industry, with respect to which each of
the following requirements have been satisfied:
(a) The Purchase Price for such Acquisition (i) must be less
than or equal to $150,000,000 and (ii) when aggregated with the
Purchase Price of all other Permitted Cellular System Acquisitions and
Permitted Asset Swaps consummated on and after the Closing Date to any
date of determination, does not exceed $450,000,000 in the aggregate;
(b) As of the closing of any such Acquisition, (i) if such
Acquisition is structured as a merger, Borrower, (or if such merger is
with any Subsidiary of Borrower, then a domestic company that is or
becomes a Subsidiary of Borrower) must be the surviving entity after
giving effect to such merger; and (ii) if such Acquisition is
structured as a stock/equity acquisition, the acquiring Company shall
own not less than an 85% interest in the entity being acquired and such
acquired entity will be a domestic company that is or becomes a direct
or indirect Subsidiary of Borrower and a Guarantor hereunder; and
(c) Such Acquisition satisfies all requirements for a
Permitted Acquisition.
PERMITTED DEBT means Debt permitted under SECTION
9.12 as described in such Section.
PERMITTED LIENS means Liens permitted under SECTION
9.13 as described in such Section.
PERMITTED PCS LICENSE ACQUISITION means any
acquisition by any Company of an Authorization to build and
operate a PCS System (including, but not limited to, any
acquisition through donation, capital contribution, or gift
from AWS, any Affiliates thereof, or any other Person), with
respect to which each of the following requirements have been
satisfied:
(a) The Purchase Price for such acquisition (i) does not
exceed $25,000,000, and (ii) when aggregated with the Purchase Price of
all other Permitted PCS License Acquisitions consummated on and after
the Closing Date to any date of determination, does not exceed
$50,000,000 in the aggregate;
(b) The projected Capital Expenditures detailed on the
Supplemental Capital Expenditure Budget with respect to such
acquisition (as required pursuant to SECTION 7.2 and to the extent
approved by Administrative Agent, Co-Syndication Agents, and
Co-Documentation Agents), when aggregated with the Supplemental Capital
Expenditures of all other Permitted PCS License Acquisitions
consummated on and after the Closing Date, does not exceed $100,000,000
in the aggregate;
(c) Before giving effect to such acquisition, the Leverage
Ratio for the Companies is less than 7.00 to 1.00;
(d) After giving effect to such acquisition, the voting and
economic interests in Parent held by AWS and its Affiliates and
Communications and its Affiliates shall be equal to their respective
interests immediately prior to the consummation of such acquisition;
and
(e) Such acquisition satisfies all requirements for a
Permitted Acquisition.
PERSON means any individual, entity, or Governmental
Authority.
POPS means, with respect to any licensed area, the
residents of such area based on the most recent publication by
Equifax Marketing Decisions Systems, Inc. or any other
publication acceptable to Administrative Agent.
POTENTIAL DEFAULT means the occurrence of any event
or existence of any circumstance which, with the giving of
notice or lapse of time or both, would become a Default.
PRIME RATE means the per annum rate of interest
established from time to time by Bank of America, N.A., as its
prime rate, which rate may not be the lowest rate of interest
charged by Bank of America, N.A. to its customers.
PRINCIPAL DEBT means, at the time of any
determination thereof, the SUM of the Revolver Principal Debt
and all Term Loan Principal Debt.
PRO RATA or PRO RATA PART, for each Lender, means on
any date of determination (a) for purposes of sharing any
amount or fee payable to any Lender in respect of a Facility
or Subfacility, the proportion which the portion of the
Principal Debt for the applicable Facility or Subfacility owed
to such Lender (whether held directly or through a
participation in respect of the LC Subfacility or Swing Line
Subfacility and determined after giving effect thereto) bears
to the Principal Debt under the applicable Facility or
Subfacility owed to all Lenders at the time in question, and
(b) for all other purposes, the proportion which the portion
of the Principal Debt owed to such Lender bears to the
Principal Debt owed to all Lenders at the time in question, or
if no Principal Debt is outstanding, then the proportion that
the aggregate of such Lender's Committed Sums then in effect
under the Facilities bears to the Total Commitment then in
effect.
PUC means any state or local regulatory agency or
governmental authority that exercises jurisdiction over the
rates or services or the ownership, construction, or operation
of network facilities or telecommunications systems or over
Persons who own, construct, or operate network facilities or
telecommunications systems.
PURCHASE PRICE means, with respect to any Permitted
Acquisition, all direct, indirect, and deferred cash and
non-cash payments made to or for the benefit of the Person
being acquired (or whose assets are being acquired), its
shareholders, officers, directors, employees, or Affiliates in
connection with such Permitted Acquisition, including, without
limitation, the amount of any Debt being assumed in connection
with such Permitted Acquisition (and subject to the
limitations on Permitted Debt hereunder), seller financing,
payments under non-competition or consulting agreements
entered into in connection with such Permitted Acquisition and
similar agreements, all non-cash consideration and the value
of any stock, options, or warrants or other Rights to acquire
stock issued as part of the consideration in such transaction;
PROVIDED THAT, for the purposes hereof, (a) non-competition
agreements and consulting agreements shall be valued at their
present value discounted over the term of such agreement at
the Base Rate in effect at the time of the Permitted
Acquisition, and (b) solely with respect to any Permitted
Asset Swap, the fair market value of the assets of the
Companies exchanged in connection with such Permitted Asset
Swap shall be excluded from the Purchase Price and, for
purposes of this calculation, the Purchase Price shall never
be less than $0.
REGISTER is defined in SECTION 13.13(c).
REGULATION D means Regulation D of the Board of
Governors of the Federal Reserve System, as amended.
REGULATION U means Regulation U of the Board of
Governors of the Federal Reserve System, as amended.
RELEASE means any spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping,
leaching, dumping, disposal, deposit, dispersal, migrating, or
other movement into the air, ground, or surface water, or soil
in violation of any Environmental Law.
REPORTING ENTITIES is defined in SECTION 8.6.
REPRESENTATIVES means representatives, officers,
directors, employees, attorneys, and agents.
REQUIRED LENDERS means (a) on any date of
determination on and after the Closing Date and prior to the
date of the initial Borrowing, those Lenders holding 50.1% or
more of the Total Commitment, (b) on any date of determination
on and after the date of the initial Borrowing and prior to
the Termination Date for the Revolver Facility, those Lenders
holding 50.1% or more of the SUM of (i) the Revolver
Commitment PLUS (ii) the Term Loan Principal Debt; and (c) on
any date of determination on or after the Termination Date for
the Revolver Facility, those Lenders holding 50.1% or more of
the SUM of the Principal Debt plus (WITHOUT DUPLICATION) the
LC Exposure.
RESERVE REQUIREMENT means, at any time, the maximum
rate at which reserves (including, without limitation, any
marginal, special, supplemental, or emergency reserves) are
required to be maintained under regulations issued from time
to time by the Board of Governors of the Federal Reserve
System (or any successor) by member banks of the Federal
Reserve System against, in the case of Eurodollar Rate
Borrowings, "EUROCURRENCY LIABILITIES" (as such term is used
in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other
reserves required by Law to be maintained by such member banks
with respect to (a) any category of liabilities which includes
deposits by reference to which the Adjusted Eurodollar Rate is
to be determined, or (b) any category of extensions of credit
or other assets which include Eurodollar Rate Borrowings. The
Adjusted Eurodollar Rate shall be adjusted automatically on
and as of the effective date of any change in the Reserve
Requirement.
RESPONSIBLE OFFICER means (a) with respect to
Borrower, its chairman, president, chief executive officer,
chief financial officer, senior vice president, or treasurer,
or, for all purposes under the Loan Documents, any other
officer designated from time to time by the Board of Directors
of Borrower, and (b) with respect to Parent, (i) if it is a
limited liability company, any Management Committee
Representative or, for all purposes under the Loan Documents,
any other officer designated from time to time by the
Management Committee, which designated officer is acceptable
to Administrative Agent, or (ii) if it is a corporation, its
chairman, president, chief executive officer, chief financial
officer, senior vice president, or treasurer, or, for all
purposes under the Loan Documents, any other officer
designated from time to time by the Board of Directors of
Parent, which designated officer is acceptable to
Administrative Agent.
RESTRICTED PAYMENTS means (a) redemptions,
repurchases, dividends, and Distributions of any kind in
respect of the capital stock (including, without limitation,
any class of common or preferred shares), membership
interests, or other equity interests issued by any Company;
(b) partnership Distributions of any kind in respect of
partnership interests of any Company that is a partnership;
and (c) payments of principal and interest on, and any
redemptions or repurchases of, Subordinated Debt.
REVOLVER COMMITMENT means an amount (subject to
reduction or cancellation as herein provided) equal to
$300,000,000.
REVOLVER COMMITMENT USAGE means, at the time of any
determination thereof, the SUM of (a) the aggregate Revolver
Principal Debt (including the Swing Line Principal Debt),
PLUS, WITHOUT DUPLICATION, (b) the LC Exposure.
REVOLVER FACILITY means the credit facility as
described in and subject to the limitations set forth in
SECTION 2.1 (including the LC Subfacility and the Swing Line
Subfacility).
REVOLVER LENDER means, on any date of determination,
any Lender that has a Committed Sum under the Revolver
Facility or that is owed any Revolver Principal Debt.
REVOLVER NOTE means a promissory note in
substantially the form of EXHIBIT A-1, and all renewals and
extensions of all or any part thereof.
REVOLVER PRINCIPAL DEBT means, on any date of
determination, the aggregate unpaid principal balance of all
Borrowings under the Revolver Facility (including, without
limitation, the Swing Line Principal Debt), TOGETHER WITH the
aggregate unpaid reimbursement obligations of Borrower in
respect of drawings under any LC.
RIGHTS means rights, remedies, powers, privileges,
and benefits.
ROAMING AGREEMENTS means (a) that certain Amended and
Restated Operating Agreement dated as of February 25, 2000,
between AWS and Parent (as the same may be amended, modified,
supplemented, or restated in compliance with SECTION 9.29) and
(b) that certain Amended and Restated Operating Agreement
dated as of February 25, 2000, between DCS and Parent (as the
same may be amended, modified, supplemented, or restated in
compliance with SECTION 9.29).
ROLLING PERIOD means, on any date of determination,
the most recent four fiscal quarters ended on March 31, June
30, September 30, or December 31 (as the case may be).
SCHEDULE means, UNLESS specified otherwise, a
schedule attached to this Agreement, as the same may be
supplemented and modified from time to time in accordance with
the terms of the Loan Documents.
SECURITY AGREEMENT means (a) a Pledge, Assignment,
and Security Agreement in substantially the form and upon the
terms of EXHIBIT D, executed by any Person pursuant to the
requirements of the Loan Documents; and (b) any amendments,
modifications, supplements, restatements, ratifications, or
reaffirmations of any Security Agreement made in accordance
with the Loan Documents.
SIGNIFICANT SALE means any sale, lease (as lessor),
transfer, or other disposition of any property or assets
(tangible or intangible, including, without limitation, stock
or equity interests in Subsidiaries) by any Company to any
other Person (OTHER THAN the Tower Sale-Leaseback, the Laredo
Joint Venture Sale, any Intercompany Acquisition, and any
sale, lease, transfer, or other disposition contemplated by
SECTIONS 9.23(a) through (e) or contemplated by SECTION 9.24)
with respect to which the Net Cash Proceeds realized by any
Company for such asset disposition (or when aggregated with
the Net Cash Proceeds from all such other asset dispositions
occurring in the same calendar year) equals or exceeds
$10,000,000.
SOLVENT means, as to a Person, that (a) the aggregate
fair market value of such Person's assets exceeds its
liabilities (whether contingent, subordinated, unmatured,
unliquidated, or otherwise), (b) such Person has sufficient
cash flow to enable it to pay its Debts as they mature, and
(c) such Person does not have unreasonably small capital to
conduct such Person's businesses.
SUBFACILITIES means, collectively, the LC Subfacility
and the Swing Line Subfacility; SUBFACILITY means, any of the
LC Subfacility or the Swing Line Subfacility.
SUBORDINATED DEBT means any Debt of any Company
subordinated to the Obligation on terms (including, without
limitation, subordination terms) reasonably acceptable to
Administrative Agent and its counsel.
SUBSIDIARY of any Person means (a) any entity of
which an aggregate of more than 50% (in number of votes) of
the stock, membership interests, or other equity interests
(OTHER THAN partnership interests) is owned of record or
beneficially, directly or indirectly, by such Person, or (b)
any partnership (limited or general) of which such Person
shall at any time be the controlling general partner
determined in accordance with GAAP or own more than 50% of the
issued and outstanding partnership interests.
SUPPLEMENTAL CAPITAL EXPENDITURES means, with respect
to Permitted Acquisitions, for any period of determination,
the aggregate projected Capital Expenditures reflected on the
Supplemental Capital Expenditure Budgets delivered in
connection with such Permitted Acquisitions, SO LONG AS each
such Supplemental Capital Expenditure Budget has been approved
by Administrative Agent, Co-Syndication Agents, and
Co-Documentation Agents, and the related Permitted Acquisition
has been consummated.
SUPPLEMENTAL CAPITAL EXPENDITURES BUDGET means, with
respect to any Permitted Acquisition, the budget detailing
projected Capital Expenditures to the latest Termination Date
and delivered in connection with such Permitted Acquisition
pursuant to SECTION 7.2.
SWING LINE BORROWING means any Borrowing under the
Swing Line Subfacility.
SWING LINE COMMITMENT means an amount (subject to
availability, reduction, or cancellation as herein provided)
equal to $15,000,000.
SWING LINE LENDER means Bank of America, N.A., and
its successors and assigns.
SWING LINE MATURITY DATE for any Swing Line Borrowing
means the earlier of (a) the last Business Day of the month in
which any Swing Line Borrowing is made and (b) the Termination
Date for the Revolver Facility.
SWING LINE NOTE means a promissory note in
substantially the form of EXHIBIT A-5, and all renewals and
extensions of all or any part thereof.
SWING LINE PRINCIPAL DEBT means, on any date of
determination, that portion of the Revolver Principal Debt
outstanding under the Swing Line Subfacility.
SWING LINE SUBFACILITY means the subfacility under
the Revolver Facility described in, and subject to the
limitations of, SECTION 2.6.
SYSTEM means individually, and SYSTEMS means
collectively, the Cellular Systems and PCS Systems, now or
hereafter owned, operated, or managed by the Companies.
TAXES means, for any Person, taxes, assessments, or
other governmental charges or levies imposed upon such Person,
its income, or any of its properties, franchises, or assets.
TERM LOAN A COMMITMENT means an amount (subject to
reduction or cancellation as herein provided) equal to
$700,000,000.
TERM LOAN A FACILITY means the credit facility as
described in and subject to the limitations set forth in
SECTION 2.2.
TERM LOAN A LENDER means, on any date of
determination, any Lender that has a Committed Sum under the
Term Loan A Facility or that is owed any Term Loan A Principal
Debt.
TERM LOAN A NOTE means a promissory note
substantially in the form of EXHIBIT A-2, and all renewals and
extensions of all or any part thereof.
TERM LOAN A PRINCIPAL DEBT means, on any date of
determination, the aggregate unpaid principal balance of all
Borrowings under the Term Loan A Facility.
TERM LOAN B COMMITMENT means an amount (subject to
reduction or cancellation as herein provided) equal to
$350,000,000.
TERM LOAN B FACILITY means the credit facility as
described in and subject to the limitations set forth in
SECTION 2.3.
TERM LOAN B LENDER means, on any date of
determination, any Lender that has a Committed Sum under the
Term Loan B Facility or that is owed any Term Loan B Principal
Debt.
TERM LOAN B NOTE means a promissory note
substantially in the form of EXHIBIT A-3, and all renewals and
extensions of all or any part thereof.
TERM LOAN B PRINCIPAL DEBT means, on any date of
determination, the aggregate unpaid principal balance of all
Borrowings under the Term Loan B Facility.
TERM LOAN C COMMITMENT means an amount (subject to
reduction or cancellation as herein provided) equal to
$400,000,000.
TERM LOAN C FACILITY means the credit facility as
described in and subject to the limitations set forth in
SECTION 2.4.
TERM LOAN C LENDER means, on any date of
determination, any Lender that has a Committed Sum under the
Term Loan C Facility or that is owed any Term Loan C Principal
Debt.
TERM LOAN C NOTE means a promissory note
substantially in the form of EXHIBIT A-4, and all renewals and
extensions of all or any part thereof.
TERM LOAN C PRINCIPAL DEBT means, on any date of
determination, the aggregate unpaid principal balance of all
Borrowings under the Term Loan C Facility.
TERM LOAN FACILITIES means, collectively, the Term
Loan A Facility, the Term Loan B Facility, and the Term Loan C
Facility, and TERM LOAN FACILITY means, any of the Term Loan A
Facilities, the Term Loan B Facilities, or the Term Loan C
Facilities.
TERM LOAN PRINCIPAL DEBT means, on any date of
determination, the SUM of the Term Loan A Principal Debt, the
Term Loan B Principal Debt, and the Term Loan C Principal
Debt.
TERM NOTES means collectively, the Term Loan A Notes,
the Term Loan B Notes, and the Term Loan C Notes.
TERMINATION DATE means (a) for purposes of the
Revolver Facility, the EARLIER of (i) March 31, 2007, and (ii)
the effective date of any other termination, cancellation, or
acceleration of all commitments to lend under the Revolver
Facility; (b) for purposes of the Term Loan A Facility, the
EARLIER of (i) March 31, 2007, and (ii) the effective date of
any other termination, cancellation, or acceleration of the
Term Loan A Facility; (c) for purposes of the Term Loan B, the
EARLIER of (i) March 31, 2008, and (ii) the effective date of
any other termination, cancellation, or acceleration of the
Term Loan B Facility; and (d) for purposes of the Term Loan C
Facility, the EARLIER of (i) March 31, 2009, and (ii) the
effective date of any other termination, cancellation, or
acceleration of the Term Loan C Facility.
TOTAL COMMITMENT means, on any date of determination,
the SUM of all Committed Sums then in effect for all Lenders
in respect of the Revolver Facility and the Term Loan
Facilities (as the same may have been reduced or canceled as
provided in the Loan Documents).
TOWERS means, on any date of determination, all or
substantially all of the cellular transmission towers owned by
the Companies.
TOWER SALE-LEASEBACK means the concurrent (a) sale of
the Towers to an unaffiliated Person and (ii) the lease of the
Towers from the purchaser thereof, which
sale-leaseback arrangements must be in form and upon terms
reasonably acceptable to Administrative Agent.
TYPE means any type of Borrowing determined with
respect to the interest option applicable thereto.
VOTING STOCK means the capital stock (or equivalent
thereof) of any class or kind, issued by Parent, the holders
of which are entitled to vote for the election of directors,
managers, or other voting members of the governing body of
Parent.
WHOLLY-OWNED when used in connection with any
Subsidiary shall mean a Subsidiary of which all of the issued
and outstanding shares of stock (EXCEPT shares required as
directors' qualifying shares) shall be owned by Parent or one
or more of its Wholly-owned Subsidiaries.
WORKING CAPITAL means the SUM of all current assets
OTHER THAN cash, LESS the SUM of all current liabilities OTHER
THAN the current portion of long term Debt, all as determined
in accordance with GAAP.
NUMBER AND GENDER OF WORDS; OTHER
REFERENCES. UNLESS otherwise specified in the Loan Documents,
(a) where appropriate, the singular includes the plural and
VICE VERSA, and words of any gender include each other gender,
(b) heading and caption references may not be construed in
interpreting provisions, (c) monetary references are to
currency of the United States of America, (d) section,
paragraph, annex, schedule, exhibit, and similar references
are to the particular Loan Document in which they are used,
(e) references to "TELECOPY," "FACSIMILE," "FAX," or similar
terms are to facsimile or telecopy transmissions, (f)
references to "INCLUDING" mean including without limiting the
generality of any description preceding that word, (g) the
rule of construction that references to general items that
follow references to specific items are limited to the same
type or character of those specific items is not applicable in
the Loan Documents, (h) references to any Person include that
Person's heirs, personal representatives, successors,
trustees, receivers, and permitted assigns, (i) references to
any Law include every amendment or supplement to it, rule and
regulation adopted under it, and successor or replacement for
it, and (j) references to any Loan Document or other document
include every renewal and extension of it, amendment and
supplement to it, and replacement or substitution for it.
ACCOUNTING PRINCIPLES. All
accounting and financial terms used in the Loan Documents and
the compliance with each financial covenant therein shall be
determined in accordance with GAAP, and, all accounting
principles shall be applied on a consistent basis so that the
accounting principles in a current period are comparable in
all material respects to those applied during the preceding
comparable period. If Borrower or any Lender determines that a
change in GAAP from that in effect on the date hereof has
altered the treatment of certain financial data to its
detriment under this Agreement, such party may, by written
notice to the others and Administrative Agent not later than
ten days after the effective date of such change in GAAP,
request renegotiation of the financial covenants affected by
such change. If Borrower and Required Lenders have not agreed
on revised covenants within 30 days after delivery of such
notice, then, for purposes of this Agreement, GAAP will mean
generally accepted accounting principles on the date just
prior to the date on which the change that gave rise to the
renegotiation occurred.
SECTION BORROWING PROVISIONS.
REVOLVER FACILITY. Each Revolver
Lender severally, but not jointly, agrees to lend to Borrower
such Revolver Lender's Commitment Percentage of one or more
Borrowings under the Revolver Facility not to exceed such
Revolver Lender's Committed Sum under the Revolver Facility,
which Borrowings may be repaid and reborrowed from time to
time in accordance with the terms and provisions of the Loan
Documents; PROVIDED THAT, (a) each such Borrowing must occur
on a Business Day and no later than the Business Day
immediately preceding the Termination Date for the Revolver
Facility; (b) each such Borrowing shall be in an amount not
less than (i) $7,000,000 or a greater integral multiple of
$1,000,000 if a Eurodollar Rate Borrowing, (ii) $3,000,000 or
a greater integral multiple of $100,000 if a Base Rate
Borrowing, or (iii) $1,000,000 or a greater integral multiple
of $100,000 if a Swing Line Borrowing; (c) on any date of
determination, after giving effect to the requested Borrowing,
the Revolver Commitment Usage shall never exceed the Revolver
Commitment; and (d) on any date of determination, after giving
effect to the requested Borrowing, each Lender's Commitment
Percentage (under the Revolver Facility) of the Revolver
Commitment Usage shall not exceed such Lender's Committed Sum.
TERM LOAN A FACILITY. Subject to and
in reliance upon the terms, conditions, representations, and
warranties in the Loan Documents, each Term Loan A Lender
severally, but not jointly, agrees to lend to Borrower in a
single Borrowing on the Closing Date such Lender's Commitment
Percentage of the Term Loan A Commitment. If all or a portion
of the Term Loan A Principal Debt is paid or prepaid, then the
amount so paid or prepaid may not be reborrowed.
TERM LOAN B FACILITY. Subject to and
in reliance upon the terms, conditions, representations, and
warranties in the Loan Documents, each Term Loan B Lender
severally, but not jointly, agrees to lend to Borrower in a
single Borrowing on the Closing Date an amount up to such
Lender's Commitment Percentage of the Term Loan B Commitment.
If all or a portion of the Term Loan B Principal Debt is paid
or prepaid, then the amount so paid or prepaid may not be
reborrowed.
TERM LOAN C FACILITY. Subject to and
in reliance upon the terms, conditions, representations, and
warranties in the Loan Documents, each Term Loan C Lender
severally, but not jointly, agrees to lend to Borrower in a
single Borrowing on the Closing Date such Lender's Commitment
Percentage of the Term Loan C Commitment. If all or a portion
of the Term Loan C Principal Debt is paid or prepaid, then the
amount so paid or prepaid may not be reborrowed.
LC SUBFACILITY.
CONDITIONS. Subject to the terms and conditions of this
Agreement and applicable Law, Administrative Agent agrees to issue LCs
upon Borrower's application therefor (denominated in Dollars) by
delivering to Administrative Agent a properly completed LC Request and
an LC Agreement with respect thereto no later than 10:00 a.m. Dallas,
Texas time three Business Days before such LC is to be issued; PROVIDED
THAT, (i) on any date of determination and after giving effect to any
LC to be issued on such date, the Revolver Commitment Usage shall never
exceed the Revolver Commitment then in effect, (ii) on any date of
determination and after giving effect to any LC to be issued on such
date, the LC Exposure shall never exceed $50,000,000 (as such
commitment under the LC Subfacility may be reduced or canceled as
herein provided), (iii) at the time of issuance of such LC, no Default
or Potential Default shall have occurred and be continuing, and (iv)
each LC must expire no later than the EARLIER of the 30th day prior to
the Termination Date for the Revolver Facility or one year from its
issuance; PROVIDED THAT, any LC may provide for automatic renewal for
successive periods of up to twelve months (but no renewal period may
extend beyond the 30th day prior to the Termination Date for the
Revolver Facility) UNLESS Administrative Agent has given prior notice
to the applicable beneficiary of its election not to extend such LC.
PARTICIPATIONS. Immediately upon the issuance by
Administrative Agent of any LC, Administrative Agent shall be deemed to
have sold and transferred to each other Revolver Lender, and each other
such Revolver Lender shall be deemed irrevocably and unconditionally to
have purchased and received from Administrative Agent, without recourse
or warranty, an undivided interest and participation, to the extent of
such Revolver Lender's Commitment Percentage (based upon the Revolver
Facility), in such LC, the LC Agreement related thereto, and all Rights
of Administrative Agent in respect thereof (OTHER THAN Rights to
receive certain fees provided for in SECTION 5.4(b)).
REIMBURSEMENT OBLIGATION. To induce Administrative
Agent to issue and maintain LCs and to induce Revolver Lenders to participate in
issued LCs, Borrower agrees to pay or reimburse Administrative Agent (i) on the
date on which any draft is presented under any LC, the amount of any draft paid
or to be paid by Administrative Agent and (ii) promptly, upon demand, the amount
of any fees (in addition to the fees described in SECTION 5) which
Administrative Agent customarily charges to a Person similarly situated in the
ordinary course of its business for amending LC Agreements, for honoring drafts
under letters of credit, and taking similar action in connection with letters of
credit. If Borrower has not reimbursed Administrative Agent for any drafts paid
or to be paid within 24 hours of demand therefor by Administrative Agent,
Administrative Agent is hereby irrevocably authorized to fund such reimbursement
obligations as a Base Rate Borrowing under the Revolver Facility to the extent
of availability under the Revolver Facility and if the conditions precedent in
this Agreement for such a Borrowing (OTHER THAN any notice requirements or
minimum funding amounts) have, to Administrative Agent's knowledge, been
satisfied. The proceeds of such Borrowing under the Revolver Facility shall be
advanced directly to Administrative Agent in payment of Borrower's unpaid
reimbursement obligation. If for any reason, funds cannot be advanced under the
Revolver Facility, then Borrower's reimbursement obligation shall continue to be
due and payable. Borrower's obligations under this SECTION 2.5(c) shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim, or defense to payment which Borrower may have at any
time against Administrative Agent or any other Person. From the date that
Administrative Agent pays a draft under an LC until the related reimbursement
obligation of Borrower is paid or funded by proceeds of a Borrowing, unpaid
reimbursement obligations shall accrue interest at the Default Rate, which
accrued interest shall be payable on demand.
GENERAL. Administrative Agent shall promptly notify Borrower
of the date and amount of any draft presented for honor under any LC
(but failure to give any such notice shall not affect Borrower's
obligations under the Loan Documents). Administrative Agent shall pay
the requested amount upon presentment of a draft for honor UNLESS such
presentment on its face does not comply with the terms of the
applicable LC. When making payment, Administrative Agent may disregard
(i) any default or potential default that exists under any other
agreement and (ii) the obligations under any other agreement that have
or have not been performed by the beneficiary or any other Person (and
Administrative Agent shall not be liable for any obligation of any
Person thereunder). Borrower's reimbursement obligations to
Administrative Agent and Revolver Lenders, and each Revolver Lender's
obligations to Administrative Agent, under this
SECTION 2.5 are absolute and unconditional irrespective of, and
Administrative Agent is not responsible for, (i) the validity,
enforceability, sufficiency, accuracy, or genuineness of documents or
endorsements which appear appropriate on their face (even if they are
in any respect invalid, unenforceable, insufficient, inaccurate,
fraudulent, or forged), (ii) any dispute by any Company with or any
Company's claims, setoffs, defenses, counterclaims, or other Rights
against Administrative Agent, any Revolver Lender, or any other
Person, or (iii) the occurrence of any Potential Default or Default.
HOWEVER, nothing in this SECTION 2.5 constitutes a waiver of the
Rights of Borrower or any Revolver Lender to assert any claim or
defense based upon the gross negligence or willful misconduct of
Administrative Agent. To the extent any Revolver Lender has funded its
ratable share of any draft under an LC, then Administrative Agent
shall promptly distribute reimbursement payments received from
Borrower to such Revolver Lender according to its ratable share. In
the event any payment by Borrower received by Administrative Agent
with respect to an LC and distributed to Revolver Lenders on account
of their participations therein is thereafter set aside, avoided, or
recovered from Administrative Agent in connection with any
receivership, liquidation, or bankruptcy proceeding, each Revolver
Lender which received such distribution shall, upon demand by
Administrative Agent, contribute such Revolver Lender's ratable
portion of the amount set aside, avoided, or recovered, TOGETHER WITH
interest at the rate required to be paid by Administrative Agent upon
the amount required to be repaid by it.
OBLIGATION OF LENDERS. If Borrower fails to reimburse
Administrative Agent as provided in SECTION 2.5(c) within 24 hours of
the demand therefor by Administrative Agent and funds cannot be
advanced under the Revolver Facility to satisfy the reimbursement
obligations, then Administrative Agent shall promptly notify each
Revolver Lender of Borrower's failure, of the date and amount of the
draft paid, and of such Revolver Lender's Commitment Percentage (based
upon the Revolver Facility) thereof. Each Revolver Lender shall
promptly and unconditionally fund its participation interest in such
unreimbursed draft by making available to Administrative Agent in
immediately available funds such Revolver Lender's Commitment
Percentage (based upon the Revolver Facility) of the unreimbursed
draft. Funds are due and payable to Administrative Agent on or before
the close of business on the Business Day when Administrative Agent
gives notice to each Revolver Lender of Borrower's reimbursement
failure (if given prior to 1:00 p.m., Dallas, Texas time) or on the
next succeeding Business Day (if notice was given after 1:00 p.m.,
Dallas, Texas time). All amounts payable by any Revolver Lender shall
accrue interest at the Federal Funds Rate from the day the applicable
draft is paid by Administrative Agent to (but not including) the date
the amount is paid by the Revolver Lender to Administrative Agent.
DUTIES OF ADMINISTRATIVE AGENT AS ISSUING LENDER.
Administrative Agent agrees with each Revolver Lender that it will
exercise and give the same care and attention to each LC as it gives to
its other letters of credit. Administrative Agent's sole liability to
each Revolver Lender with respect to such LCs (OTHER THAN liability
arising from the gross negligence or willful misconduct of
Administrative Agent) shall be to distribute promptly to each Revolver
Lender who has acquired a participating interest therein such Revolver
Lender's ratable portion of any payments made to Administrative Agent
by Borrower pursuant to SECTION 2.5(d). Each Revolver Lender and
Borrower agree that, in paying any draw under any LC, Administrative
Agent shall not have any responsibility to obtain any document (OTHER
THAN any documents required by the respective LC) or to ascertain or
inquire as to any document's validity, enforceability, sufficiency,
accuracy, or genuineness or the authority of any Person delivering any
such document. Administrative Agent, Revolver Lenders, and their
respective Representatives shall not be liable to any other Lender or
any Company for any LCs use or for any beneficiary's acts or omissions.
Any action, inaction, error, delay, or omission taken or suffered by
Administrative Agent or any
of its Representatives under or in connection with any LC, applicable
drafts or documents, or the transmission, dispatch, or delivery of any
related message or advice, if in good faith and in conformity with
such Laws as Administrative Agent or any of its Representatives may
deem applicable and in accordance with the standards of care specified
in the UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS issued by
the International Chamber of Commerce, as in effect on the date of
issue of such LC, shall be binding upon the Companies and Lenders and
shall not place Administrative Agent or any of its Representatives
under any resulting liability to any Company or any Lender.
CASH COLLATERAL. On the Termination Date for the Revolver
Facility, or on any date that the LC Exposure exceeds the
then-effective commitment under the LC Subfacility, or upon any demand
by Administrative Agent upon the occurrence and during the continuance
of a Default, Borrower shall provide to Administrative Agent, for the
benefit of Revolver Lenders, (i) cash collateral in Dollars in an
amount equal to 110% of the LC Exposure existing on such date, such
cash and all interest thereon shall constitute cash collateral for all
LCs, and (ii) such additional cash collateral as Administrative Agent
may from time to time require, so that the cash collateral amount shall
at all times equal or exceed 110% the LC Exposure. Any cash collateral
deposited under this CLAUSE (g), and all interest earned thereon, shall
be held by Administrative Agent and invested and reinvested at the
expense and the written direction of Borrower, in U.S. Treasury Bills
with maturities of no more than 90 days from the date of investment.
INDEMNIFICATION. BORROWER SHALL PROTECT, INDEMNIFY, PAY, AND
SAVE ADMINISTRATIVE AGENT AND EACH LENDER HARMLESS FROM AND AGAINST ANY
AND ALL CLAIMS, DEMANDS, LIABILITIES, DAMAGES, OR LOSSES OF, OR OWED TO
THIRD PARTIES (INCLUDING ANY OF THE FOREGOING ARISING FROM THE
NEGLIGENCE OF ADMINISTRATIVE AGENT, LENDERS, OR THEIR RESPECTIVE
REPRESENTATIVES), AND ANY AND ALL RELATED COSTS, CHARGES, AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES), WHICH ADMINISTRATIVE AGENT, OR
ANY LENDER MAY INCUR OR BE SUBJECT TO AS A CONSEQUENCE, DIRECT OR
INDIRECT, OF (A) THE ISSUANCE OF ANY LC, (B) ANY DISPUTE ABOUT AN LC,
OR (C) THE FAILURE OF ADMINISTRATIVE AGENT TO HONOR A DRAFT UNDER SUCH
LC AS A RESULT OF ANY ACT OR OMISSION (WHETHER RIGHT OR WRONG) OF ANY
PRESENT OR FUTURE GOVERNMENTAL AUTHORITY. HOWEVER, NO PERSON IS
ENTITLED TO INDEMNITY HEREUNDER FOR ITS OWN GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. THE FOREGOING INDEMNITY PROVISIONS SHALL SURVIVE THE
SATISFACTION AND PAYMENT OF THE OBLIGATION AND TERMINATION OF THIS
AGREEMENT.
LC AGREEMENTS. Although referenced in any LC, terms of any
particular agreement or other obligation to the beneficiary are not
incorporated into this Agreement in any manner. The fees and other
amounts payable with respect to each LC are as provided in this
Agreement, Borrower's reimbursement obligations with respect to drafts
under any LC shall be deemed part of the Obligation, and in the event
of any conflict between the terms of this Agreement and any LC
Agreement, the terms of this Agreement shall be controlling.
SWING LINE SUBFACILITY.
For the convenience of the parties and as an integral
part of the transactions contemplated by the Loan Documents, Swing Line
Lender, solely for its own account, may make any requested Borrowing of
$1,000,000 or a greater integral multiple of $100,000, subject to those
terms
and conditions applicable to Borrowings set forth in SECTIONS
7.3(c) through (h), directly to Borrower as a Swing Line Borrowing
without requiring any other Lender to fund its Pro Rata Part thereof
UNLESS and until SECTION 2.6(b) is applicable; PROVIDED THAT: (i) each
Swing Line Borrowing must occur on a Business Day and no later than the
Business Day immediately preceding the Termination Date for the
Revolver Facility; (ii) the aggregate Swing Line Principal Debt
outstanding on any date of determination shall not exceed the Swing
Line Commitment; (iii) on any date of determination, the Revolver
Commitment Usage shall never exceed the Revolver Commitment; (iv) the
Revolver Principal Debt outstanding on any date of determination shall
not exceed the Revolver Commitment then in effect; (v) at the time of
such Swing Line Borrowing, no Default or Potential Default shall have
occurred and be continuing; (vi) each Swing Line Borrowing shall bear
interest at a rate per annum equal to the Base Rate PLUS the Applicable
Margin for Base Rate Borrowings for the Revolver Facility; PROVIDED
THAT, at any time after Revolver Lenders are deemed to have purchased
pursuant to SECTION 2.6(b), a participation in any Swing Line
Borrowing, such Borrowing shall bear interest at the Default Rate; and
(vii) no additional Swing Line Borrowing shall be made at any time
after any Revolver Lender has refused, notwithstanding the requirements
of SECTION 2.6(b), to purchase a participation in any Swing Line
Borrowing as provided in such Section, and until such purchase shall
occur or until the Swing Line Borrowing has been repaid. Each Borrowing
under the Swing Line Subfacility shall be available and may be prepaid
on same day telephonic notice from Borrower to Swing Line Lender, SO
LONG AS such notice is received by Swing Line Lender prior to 12:00
noon (Dallas, Texas time). Accrued interest on Swing Line Borrowings
shall be due and payable on each March 31, June 30, September 30, and
December 31, and on the Termination Date for the Revolver Facility. On
each Swing Line Maturity Date, all Swing Line Principal Debt then
outstanding shall be repaid in full.
If Borrower fails to repay any Swing Line Borrowing
as provided herein and funds cannot be or are not advanced under the
Revolver Facility to satisfy the obligations under the Swing Line
Subfacility, Administrative Agent shall timely notify each Revolver
Lender of such failure and of the date and amount not paid. No later
than the close of business on the date such notice is given (if such
notice was given prior to 12:00 noon, Dallas, Texas time on any
Business Day, or, if made at any other time, on the next Business Day
following the date of such notice), each Revolver Lender shall be
deemed to have irrevocably and unconditionally purchased and received
from Swing Line Lender an undivided interest and participation in such
Swing Line Borrowing to the extent of such Revolver Lender's Commitment
Percentage (with respect to the Revolver Facility) thereof, and each
Revolver Lender shall make available to Swing Line Lender in
immediately available funds such Revolver Lender's Commitment
Percentage (with respect to the Revolver Facility) of the unpaid amount
of such Swing Line Borrowing. All such amounts payable by any Revolver
Lender shall include interest thereon from the date on which such
payment is payable by such Revolver Lender to, but not including, the
date such amount is paid by such Revolver Lender to Administrative
Agent, at the Federal Funds Rate. If such Revolver Lender does not
promptly pay such amount upon Administrative Agent's demand therefor,
and until such time as such Revolver Lender makes the required payment,
Swing Line Lender shall be deemed to continue to have outstanding a
Swing Line Borrowing in the amount of such unpaid obligation. Each
payment by Borrower of all or any part of any Swing Line Borrowing
shall be paid to Administrative Agent for the ratable benefit of Swing
Line Lender and those Revolver Lenders who have funded their
participations in such Swing Line Principal Debt under this SECTION
2.6(b); PROVIDED THAT, with respect to any such participation, all
interest accruing on the Swing Line Principal Debt to which such
participation relates prior to the date of funding, such participation
shall be payable solely to Swing Line Lender for its own account. In
the event that any payment received by Swing Line Lender is required to
be returned, each Revolver Lender will return to Swing Line Lender any
portion thereof previously distributed by Swing Line Lender to it.
Notwithstanding anything to the contrary in this
Agreement, each Revolver Lender's obligation to fund the Borrowings and
to purchase and fund participating interests pursuant to SECTION 2.6(b)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense, or other Right which such Revolver
Lender or Borrower may have against the Swing Line Lender, Borrower, or
any other Person for any reason whatsoever; (ii) the occurrence or
continuance of a Potential Default or a Default or the failure to
satisfy any of the conditions specified in SECTION 7; (iii) any adverse
change in the condition (financial or otherwise) of any Company; (iv)
any breach of this Agreement by any Company or any Lender; or (v) any
other circumstance, happening, or event whatsoever, whether or not
similar to any of the foregoing.
TERMINATIONS OR REDUCTIONS OF COMMITMENTS.
VOLUNTARY COMMITMENT REDUCTION. Without premium or penalty,
and upon giving not less than ten Business Days prior written and
irrevocable notice to Administrative Agent, Borrower may terminate in
whole or in part the unused portion of the Revolver Commitment, the
Swing Line Commitment, or the commitment under the LC Subfacility;
PROVIDED THAT: (i) each partial termination of the Revolver Commitment
shall be in an amount of not less than $5,000,000 or a greater integral
multiple of $1,000,000; and each partial termination of the Swing Line
Commitment or the commitment under the LC Subfacility shall be in an
amount of not less than $1,000,000 or a greater integral multiple of
$250,000; and (ii) on any date of determination, the amount of the
Revolver Commitment may not be reduced below the Revolver Commitment
Usage; the Swing Line Commitment may not be reduced below the Swing
Line Principal Debt; and the commitment under the LC Subfacility may
not be reduced below the LC Exposure. At the time of any commitment
termination under this SECTION 2.7, Borrower shall pay to
Administrative Agent, for the account of each Revolver Lender, as
applicable, any amounts that may then be due under SECTION 3.3(c), all
accrued and unpaid fees then due and payable under this Agreement, the
interest attributable to the amount of that reduction, and any related
Consequential Loss. Any part of the Revolver Commitment, the Swing Line
Commitment, or the commitment under the LC Subfacility that is
terminated may not be reinstated.
MANDATORY COMMITMENT REDUCTIONS. To the extent any payment or
reduction of the Revolver Principal Debt pursuant to SECTION 3.12(b) or
any prepayment pursuant to SECTION 3.3(b) or (c) results in a mandatory
reduction of the Revolver Commitment, then the Revolver Commitment
shall be reduced by the amount of such payment, and each Revolver
Lender's Committed Sum under the Revolver Facility shall be ratably
reduced by such amount.
ADDITIONAL REDUCTIONS. The Swing Line Commitment and the
commitment under the LC Subfacility shall each be reduced from time to
time on the date of any mandatory or voluntary reduction of the
Revolver Commitment by the amount, if any, by which EITHER such
Subfacility exceeds the Revolver Commitment after giving effect to such
reduction of the Revolver Commitment.
RATABLE ALLOCATION OF REVOLVER COMMITMENT REDUCTIONS. Each
reduction of the Revolver Commitment under this SECTION 2.7 shall be
allocated among the Revolver Lenders in accordance with their
respective Commitment Percentages under the Revolver Facility.
BORROWING PROCEDURE. The following
procedures apply to all Borrowings (OTHER THAN Swing Line Borrowings
and Borrowings pursuant to SECTION 2.5(c)):
BORROWING REQUEST. Borrower may request a Borrowing by making
or delivering a Borrowing Notice to Administrative Agent requesting
that Lenders fund a Borrowing on a certain date (the "BORROWING DATE"),
which Borrowing Notice (i) shall be irrevocable and binding on
Borrower, (ii) shall specify the Facility or Facilities under which
such Borrowing is being made, (iii) shall specify the Borrowing Date,
amount, Type, and (for a Borrowing comprised of Eurodollar Rate
Borrowings) Interest Period, (iv) must be received by Administrative
Agent no later than 10:00 a.m. Dallas, Texas time on the third Business
Day preceding the Borrowing Date for any Eurodollar Rate Borrowing or
on the Business Day immediately preceding the Borrowing Date for any
Base Rate Borrowing, and (v) shall state the purpose or purposes for
which such Borrowing is being requested. Administrative Agent shall
timely notify each Lender with respect to each Borrowing Notice.
FUNDING. Each Lender shall remit its Commitment Percentage for
the relevant Facility of each requested Borrowing to Administrative
Agent's principal office in Dallas, Texas, in funds which are or will
be available for immediate use by Administrative Agent by 1:00 p.m.,
Dallas, Texas time on the applicable Borrowing Date. Subject to receipt
of such funds, Administrative Agent shall (UNLESS to its actual
knowledge any of the conditions precedent therefor have not been
satisfied by Borrower or waived by the requisite Lenders under SECTION
13.11) make such funds available to Borrower by causing such funds to
be deposited to Borrower's account as designated to Administrative
Agent by Borrower.
FUNDING ASSUMED. Absent contrary written notice from a Lender,
Administrative Agent may assume that each Lender has made its
Commitment Percentage of the requested Borrowing available to
Administrative Agent on the applicable Borrowing Date, and
Administrative Agent may, in reliance upon such assumption (but shall
not be required to), make available to Borrower a corresponding amount.
If a Lender fails to make its Commitment Percentage of any requested
Borrowing available to Administrative Agent on the applicable Borrowing
Date, Administrative Agent may recover the applicable amount on demand
(i) from that Lender, TOGETHER WITH interest commencing on the
Borrowing Date and ending on (but excluding) the date Administrative
Agent recovers the amount from that Lender, at an annual interest rate
equal to the Federal Funds Rate, or (ii) if that Lender fails to pay
its amount upon demand, then from Borrower. No Lender is responsible
for the failure of any other Lender to make its Commitment Percentage
of any Borrowing available as required by SECTION 2.8(b); HOWEVER,
failure of any Lender to make its Commitment Percentage of any
Borrowing so available does not excuse any other Lender from making its
Commitment Percentage of any Borrowing so available.
SECTION TERMS OF PAYMENT.
LOAN ACCOUNTS, NOTES, AND PAYMENTS.
LOAN ACCOUNTS; NOTELESS TRANSACTION. The Principal Debt owed
to each Lender shall be evidenced by one or more Loan Accounts or
records maintained by such Lender in the ordinary course of business.
The Loan Accounts or records maintained by Administrative Agent
(including, without limitation, the Register) and each Lender shall be
PRIMA FACIE evidence absent manifest error of the amount of the
Borrowings made by Borrower from each Lender under this Agreement (and
the Facilities and Subfacilities thereunder) and the interest and
principal payments thereon. Any failure to so record or any error in
doing so shall not, HOWEVER, limit or otherwise affect the obligation
of Borrower under the Loan Documents to pay any amount owing with
respect to the Obligation.
NOTES. Upon the request of any Lender, made through
Administrative Agent, the Principal Debt owed to such Lender may be
evidenced by one or more of the following Notes (as the case may be):
(i) a Revolver Note (with respect to Revolver Principal Debt, OTHER
THAN under the Swing Line Subfacility); (ii) a Swing Line Note (with
respect to the Swing Line Principal Debt); (iii) a Term Loan A Note
(with respect to Term Loan A Principal Debt); (iv) a Term Loan B Note
(with respect to Term Loan B Principal Debt); and (v) a Term Loan C
Note (with respect to Term Loan C Principal Debt).
PAYMENT. All payments of principal, interest, and other
amounts to be made by Borrower under the Loan Documents shall be made
to Administrative Agent at its principal office in Dallas, Texas in
Dollars and in funds which are or will be available for immediate use
by Administrative Agent by 12:00 noon Dallas, Texas time on the day
due, without setoff, deduction, or counterclaim. Payments made after
12:00 noon, Dallas, Texas, time shall be deemed made on the Business
Day next following. Administrative Agent shall pay to each Lender any
payment of principal, interest, or other amount to which such Lender is
entitled hereunder on the same day Administrative Agent shall have
received the same from Borrower; PROVIDED such payment is received by
Administrative Agent prior to 12:00 noon Dallas, Texas time, and
otherwise before 12:00 noon Dallas, Texas time on the Business Day next
following.
PAYMENT ASSUMED. UNLESS Administrative Agent has received
notice from Borrower prior to the date on which any payment is due
under this Agreement that Borrower will not make that payment in full,
Administrative Agent may assume that Borrower has made the full payment
due and Administrative Agent may, in reliance upon that assumption,
cause to be distributed to the appropriate Lender on that date the
amount then due to such Lenders. If and to the extent Borrower does not
make the full payment due to Administrative Agent, each Lender shall
repay to Administrative Agent on demand the amount distributed to that
Lender by Administrative Agent, TOGETHER WITH interest for each day
from the date that Lender received payment from Administrative Agent
until the date that Lender repays Administrative Agent (UNLESS such
repayment is made on the same day as such distribution), at an annual
interest rate equal to the Federal Funds Rate.
INTEREST AND PRINCIPAL PAYMENTS.
INTEREST. Accrued interest on each Eurodollar Rate Borrowing
is due and payable on the last day of its respective Interest Period
and on the Termination Date for the applicable Facility; PROVIDED THAT,
if any Interest Period is greater than three months, then accrued
interest is also due and payable on the three month anniversary of the
date on which such Interest Period commences, on each three month
anniversary thereafter, and on the last day of such Interest Period.
Accrued interest on each Base Rate Borrowing shall be due and payable
each March 31, June 30, September 30, and December 31, and on the
Termination Date for the applicable Facility.
REVOLVER PRINCIPAL DEBT. The Revolver Principal Debt is due
and payable on the Termination Date for the Revolver Facility.
TERM LOAN A PRINCIPAL DEBT. The Term Loan A Principal Debt is
due and payable in quarterly installments in the principal amounts
indicated in the table below, commencing on June 30, 2001, and
continuing thereafter on the last Business Day of each March, June,
September, and December, with the final payment due on the Termination
Date for the Term Loan A Facility, in accordance with the following
amortization schedule:
==================================================== ===========================
PAYMENT DATES PRINCIPAL INSTALLMENTS
==================================================== ===========================
June 30, 2001, September 30, 2001, December 31, $8,750,000/each
2001, and March 31, 2002
---------------------------------------------------- ---------------------------
June 30, 2002, September 30, 2002, December 31, $17,500,000/each
2002, and March 31, 2003
---------------------------------------------------- ---------------------------
June 30, 2003, September 30, 2003, December 31, $26,250,000/each
2003, and March 31, 2004
---------------------------------------------------- ---------------------------
June 30, 2004, September 30, 2004, December 31, $35,000,000/each
2004, and March 31, 2005
---------------------------------------------------- ---------------------------
June 30, 2005, September 30, 2005, December 31, $43,750,000/each
2005, March 31, 2006, June 30, 2006, September 30,
2006, December 31, 2006, and March 31, 2007
---------------------------------------------------- ---------------------------
TERM LOAN B PRINCIPAL DEBT. The Term Loan B Principal Debt is
due and payable in quarterly installments in the principal amounts
indicated in the table below, commencing on June 30, 2001, and
continuing thereafter on the last Business Day of each March, June,
September, and December, with the final payment due on the Termination
Date for the Term Loan B Facility, in accordance with the following
amortization schedule:
==================================================== ===========================
PAYMENT DATES PRINCIPAL INSTALLMENTS
==================================================== ===========================
June 30, 2001, September 30, 2001, December 31, $875,000/each
2001; each March 31, June 30, September 30, and
December 31 of calendar years 2002, 2003, 2004,
and 2005; and March 31, 2006
---------------------------------------------------- ---------------------------
June 30, 2006, September 30, 2006, December 31, $39,375,000/each
2006, and March 31, 2007,
---------------------------------------------------- ---------------------------
June 30, 2007, September 30, 2007, December 31, $43,750,000/each
2007, and March 31, 2008
==================================================== ===========================
TERM LOAN C PRINCIPAL DEBT. The Term Loan C Principal Debt is
due and payable in quarterly installments in the principal amounts
indicated in the table below, commencing on June 30, 2001, and
continuing thereafter on the last Business Day of each March, June,
September, and December, with the final payment due on the Termination
Date for the Term Loan C Facility, in accordance with the following
amortization schedule:
==================================================== ===========================
PAYMENT DATES PRINCIPAL INSTALLMENTS
==================================================== ===========================
June 30, 2001, September 30, 2001, December 31, $1,000,000/each
2001; each March 31, June 30, September 30, and
December 31 of calendar years 2002, 2003, 2004,
2005, and 2006; and March 31, 2007
---------------------------------------------------- ---------------------------
June 30, 2007, September 30, 2007, December 31, $45,000,000/each
2007, and March 31, 2008
---------------------------------------------------- ---------------------------
June 30, 2008, September 30, 2008, December 31, $49,000,000/each
2008, and March 31, 2009
==================================================== ===========================
PREPAYMENTS.
OPTIONAL PREPAYMENTS. Except as set forth in SECTION 3.3(f),
after giving Administrative Agent advance written notice of the intent
to prepay, Borrower may voluntarily prepay all or any
part of the Revolver Principal Debt, the Swing Line Principal Debt,
the Term Loan A Principal Debt, the Term Loan B Principal Debt, and
the Term Loan C Principal Debt from time to time and at any time, in
whole or in part, without premium or penalty; PROVIDED THAT: (i) such
notice must be received by Administrative Agent by 12:00 noon Dallas,
Texas time on the third Business Day preceding the date of prepayment
of any Borrowing; (ii) each such partial prepayment must be in a
minimum amount of at least $5,000,000 or a greater integral multiple
of $1,000,000 or such lesser amount as may be outstanding under the
applicable Facility (or with respect to prepayments of the Swing Line
Principal Debt, $1,000,000 or a greater integral multiple of $250,000
or such lesser amount as may be outstanding under the Swing Line
Subfacility); (iii) any Eurodollar Rate Borrowing may only be prepaid
at the end of an applicable Interest Period (UNLESS Borrower pays the
amount of any Consequential Loss); and (iv) Borrower shall pay any
related Consequential Loss within ten days after demand therefor.
Conversions under SECTION 3.11 are not prepayments. Each notice of
prepayment shall specify the prepayment date, the Facility hereunder
being prepaid, and the Type of Borrowing(s) and amount(s) of such
Borrowing(s) to be prepaid and shall constitute a binding obligation
of Borrower to make a prepayment on the date stated therein, TOGETHER
WITH (UNLESS such prepayment is made with respect to a Base Rate
Borrowing under the Revolver Facility or the Swing Line Subfacility)
accrued and unpaid interest to the date of such payment on the
aggregate principal amount prepaid.
Unless a Default or Potential Default has occurred and is
continuing or would arise as a result thereof (whereupon the provision
of SECTION 3.12(b) shall apply), and NOTWITHSTANDING ANY OTHER
PROVISION HEREOF, (i) any payment or prepayment of the Revolver
Principal Debt may be reborrowed by Borrower, subject to the terms and
conditions hereof, and (ii) any voluntary prepayments of the Term Loan
A Facility, the Term Loan B Facility, or the Term Loan C Facility shall
be applied ratably to the Term Loan A Principal Debt, the Term Loan B
Principal Debt, and the Term Loan C Facility and shall be applied in
direct order of maturity to satisfy up to one year's
regularly-scheduled principal installments under the Term Loan A
Facility, the Term Loan B Facility, and the Term Loan C Facility as set
forth in SECTIONS 3.2(c), 3.2(d), and 3.2(e), and thereafter applied
proportionately to the regularly-scheduled principal installments under
the Term Loan A Facility, the Term Loan B Facility, and the Term Loan C
Facility as set forth in SECTIONS 3.2(c), 3.2(d), and 3.2(e), and shall
be allocated Pro Rata to each Term Loan A Lender, Term Loan B Lender,
and Term Loan C Lender (for purposes hereof, "RATABLY" for each
Facility, on any date of determination, shall mean the proportion that
EITHER the Term Loan A Principal Debt, the Term Loan B Principal Debt,
or the Term Loan C Principal Debt, as the case may be, bears to the
Term Loan Principal Debt).
MANDATORY PREPAYMENTS FROM NET CASH PROCEEDS. Until such time
as the Principal Debt has been repaid in full and the Revolver
Commitment terminated in full, the Principal Debt (and, as applicable,
the Revolver Commitment) shall be permanently prepaid (or reduced, as
the case may be), in the amounts and upon the occurrence of any of the
following events:
3) DEBT ISSUANCE. Concurrently with any Debt Issuance by any
Company, the Principal Debt shall be prepaid (and the Revolver
Commitment reduced to the extent required by this SECTION
3.3(b)), in the order and manner specified herein, by an
amount equal to 100% of the Net Cash Proceeds realized by any
Company from such Debt Issuance;
4) SIGNIFICANT SALES OR PERMITTED ASSET SWAPS. If any portion
of the Net Cash Proceeds realized by any Company from any
Significant Sale or Permitted Asset Swap (including any
deferred purchase price therefor and any Net Cash Proceeds of
any
asset disposition which constitutes a Significant Sale as
a result of aggregation with other asset dispositions in the
same calendar year) has not been reinvested in Cellular Assets
of any Company within 12 months from the receipt by any
Company of such Net Cash Proceeds (including receipt of any
deferred payments for any such Significant Sale or Permitted
Asset Swap or portion thereof, if and when received) and if no
Default or Potential Default exists or arises as a result of
any such Significant Sale or Permitted Asset Swap, then on the
day following the twelfth month after receipt of such Net Cash
Proceeds, the Principal Debt shall be prepaid (and the
Revolver Commitment reduced to the extent required in this
SECTION 3.3(b)), in the order and manner specified herein, by
an amount equal to 100% of all such Net Cash Proceeds not
reinvested in Cellular Assets of the Companies;
5) EQUITY ISSUANCES. Concurrently with any Equity Issuance by
any Company, the Principal Debt shall be permanently prepaid
(and the Revolver Commitment reduced to the extent required by
this SECTION 3.3(b)), in the order and manner specified
herein, by an amount equal to 100% of the Net Cash Proceeds
realized by any Company from such Equity Issuance, OTHER THAN
(i) the Net Cash Proceeds from an Equity Issuance by Parent to
AWS (or a Wholly-owned subsidiary thereof) or to
Communications (or a Wholly-owned subsidiary thereof), SO LONG
AS such Net Cash Proceeds are contributed to Borrower and are
used for the purposes set forth in SECTIONS 8.1(c) through (f)
and Borrower certifies to such use and (ii) SO LONG AS no
Change of Control occurs after giving effect thereto, the Net
Cash Proceeds from any Equity Issuance to the extent the
proceeds thereof are used to finance a Permitted Acquisition;
6) TOWER SALE-LEASEBACK. Upon consummation of the Tower
Sale-Leaseback, the Principal Debt shall be prepaid (and the
Revolver Commitment reduced to the extent required by this
SECTION 3.3(b)) by an amount equal to the Net Cash Proceeds
realized by the Companies from the Tower Sale-Leaseback;
7) LAREDO JOINT VENTURE SALE. Upon consummation of the Laredo
Joint Venture Sale, the Revolver Principal Debt shall be
prepaid (and the Revolver Commitment reduced to the extent
required by this SECTION 3.3(b)) by an amount equal to the Net
Cash Proceeds in excess of $40,000,000 realized by the
Companies from the Laredo Joint Venture Sale;
8) PREPAYMENTS AFTER DEFAULT OR POTENTIAL DEFAULT. At any time
a Default or Potential Default exists or arises after giving
effect to any Equity Issuance, any Significant Sale, any
Permitted Asset Swap, the Tower-Sale-Leaseback, or the Laredo
Joint Venture Sale, then, concurrently with such Equity
Issuance, Significant Sale (including any asset disposition
which constitutes a Significant Sale as a result of
aggregation with other asset dispositions in the same calendar
year), Permitted Asset Swap, Tower-Sale-Leaseback, or Laredo
Joint Venture Sale, the Principal Debt shall be permanently
prepaid and the Revolver Commitment reduced, in the order and
manner specified in SECTION 3.12(b), by an amount equal to
100% of the Net Cash Proceeds realized by any Company from any
such Equity Issuance, Significant Sale, Permitted Asset Swap,
Tower-Sale-Leaseback, or Laredo Joint Venture Sale.
The commitment reductions or prepayments under this SECTION 3.3(b)
shall be applied as follows, UNLESS a Default or Potential Default has
occurred and is continuing or would arise as a result thereof
(whereupon the provisions of SECTION 3.12(b) shall apply): (i)
prepayments under SECTION 3.3(b)(v) shall be applied to the Revolver
Principal Debt without a reduction in the Revolver
Commitment, EXCEPT as required by SECTION 2.7(b) upon the occurrence
of a Default or Potential Default; and (ii) prepayments under SECTIONS
3.3(b)(i), (ii), (iii), (iv), and (vi) shall be applied: (a) first,
subject to the provisions of SECTION 3.3(f), ratably as a prepayment
of the Obligation arising under the Term Loan Facilities until paid in
full (for purposes hereof, "RATABLY" for each Facility, on any date of
determination, shall mean the proportion that Principal Debt
outstanding under the relevant Term Loan Facility, bears to the Term
Loan Principal Debt); and (B) second, as a mandatory prepayment of the
Revolver Principal Debt, and (if the prepayment arises under SECTIONS
3.3(b)(ii) and (iii) or if a Default then exists or arises) as a
mandatory reduction of the Revolver Commitment until the Revolver
Commitment is reduced to $100,000,000. All mandatory prepayments of
the Term Loan A Principal Debt shall be applied ratably to each unpaid
installment of Term Loan A Principal Debt and shall be allocated Pro
Rata to each Term Loan A Lender. All mandatory prepayments of the Term
Loan B Principal Debt shall be applied ratably to each unpaid
installment of Term Loan B Principal Debt and shall be allocated Pro
Rata to each Term Loan B Lender (OTHER THAN Declining B Lenders). All
mandatory prepayments of the Term Loan C Principal Debt shall be
applied ratably to each unpaid installment of Term Loan C Principal
Debt and shall be allocated Pro Rata to each Term Loan C Lender (OTHER
THAN Declining C Lenders). All mandatory prepayments of the Revolver
Facility shall be allocated Pro Rata to each Revolver Lender.
MANDATORY PREPAYMENTS FROM EXCESS CASH FLOW. No later than the
30th day following the date of delivery of the Financial Statements
required under SECTION 9.3(a) for fiscal year 2000 and each fiscal year
thereafter, (but in any event within 120 days after the end of each
fiscal year of the Companies), the Principal Debt shall be permanently
prepaid (and the Revolver Commitment reduced to the extent required by
this SECTION 3.3(c)) by an amount equal to EITHER (A) 75% of Excess
Cash Flow for the fiscal year covered by such Financial Statements, if
the Leverage Ratio of the Companies is greater than or equal to 7.00 to
1.00 or (B) 50% of Excess Cash Flow for the fiscal year covered by such
Financial Statements, if the Leverage Ratio of the Companies is less
than 7.00 to 1.00. Unless a Default or Potential Default then exists or
arises as a result therefrom (whereupon the provisions of SECTION
3.12(b) shall apply), each reduction or prepayment under this SECTION
3.3(c) from payments from Excess Cash Flow made in fiscal years 2001
and 2002 respectively (based on the Excess Cash Flow for fiscal years
2000 and 2001 respectively) shall be applied ratably to the Revolver
Principal Debt, the Term Loan A Principal Debt, the Term Loan B
Principal Debt, and the Term Loan C principal Debt (for purposes
hereof, "RATABLY," for each Facility, on any date of determination,
shall mean the proportion that either the Revolver Principal Debt, the
Term Loan A Principal Debt, the Term Loan B Principal Debt, and the
Term Loan C Principal Debt, as the case may be, bears to the Term Loan
Principal Debt). Unless a Default or Potential Default then exists or
arises as a result thereof (whereupon the provisions of SECTION 3.12(b)
shall apply), each reduction or prepayment under this SECTION 3.3(c)
from payments from Excess Cash Flow made in fiscal year 2003 and
thereafter shall be applied (i) FIRST, subject to the provisions of
SECTION 3.3(f), ratably as a prepayment of the Obligation arising under
the Term Loan A Facility, the Term Loan B Facility, and the Term Loan C
Facility until paid in full (for purposes hereof, "RATABLY" for each
Facility, on any date of determination, shall mean the proportion that
EITHER the Term Loan A Principal Debt, the Term Loan B Principal Debt,
and the Term Loan C Principal Debt, as the case may be, bears to the
Principal Debt); and (ii) SECOND, as a mandatory prepayment of the
Revolver Principal Debt, or if a Default then exists or arises, as a
mandatory reduction of the Revolver Commitment. All mandatory
prepayments of the Term Loan A Principal Debt shall be applied ratably
to each unpaid installment of Term Loan A Principal Debt and shall be
allocated Pro Rata to each Term Loan A Lender. All mandatory
prepayments of the Term Loan B Principal Debt shall be applied ratably
to each unpaid installment of Term Loan B Principal Debt and shall be
allocated Pro Rata to each Term Loan B Lender (OTHER THAN Declining B
Lenders). All mandatory prepayments of the Term Loan C
Principal Debt shall be applied ratably to each unpaid installment of
Term Loan C Principal Debt and shall be allocated Pro Rata to each
Term Loan C Lender (OTHER THAN Declining C Lenders). All mandatory
prepayments of the Revolver Facility shall be allocated Pro Rata to
each Revolver Lender. Amounts of Revolver Principal Debt prepaid
pursuant to this SECTION 3.3(c) shall not reduce the Revolver
Commitment UNLESS (i) a Default or Potential Default then exists or
arises, or (ii) no Term Principal Debt is then outstanding.
REVOLVER FACILITY MANDATORY PAYMENTS/REDUCTIONS. On any date
of determination if the Revolver Commitment Usage exceeds the Revolver
Commitment then in effect (including as a result of any Revolver
Commitment reduction pursuant to SECTION 3.3(b)) or the Swing Line
Principal Debt exceeds the Swing Line Commitment then in effect, then
Borrower shall make a mandatory prepayment of the Revolver Principal
Debt or the Swing Line Principal Debt, as the case may be, in at least
the amount of such excess, TOGETHER WITH (x) all accrued and unpaid
interest on the principal amount so prepaid and (y) any Consequential
Loss arising as a result thereof; PROVIDED THAT, on any such reduction
date, if no Swing Line Principal Debt or Revolver Principal Debt is
then outstanding, but the LC Exposure exceeds the Revolver Commitment,
then Borrower shall provide to Administrative Agent, for the benefit of
Lenders, cash collateral in Dollars in an amount AT LEAST equal to 110%
of such excess. All mandatory prepayments under the Revolver Facility
or Revolver Commitment reductions hereunder shall be allocated among
the Revolver Lenders in accordance with their respective Commitment
Percentages under the Revolver Facility.
MANDATORY PREPAYMENTS OF INTEREST/CONSEQUENTIAL LOSS. All
prepayments under this SECTION 3.3 shall be made, TOGETHER WITH accrued
interest to the date of such prepayment on the principal amount prepaid
and any Consequential Loss arising as a result thereof.
TERM LOAN OPT-OUTS.
9) TERM LOAN B. To the extent there is any Term Loan A
Principal Debt outstanding, any Term Loan B Lender, at its
option, may elect not to accept such partial prepayment under
this SECTION 3.3 (such Lender being a "DECLINING B LENDER"),
in which event the provisions of the next sentence shall
apply. On the prepayment date, an amount equal to that portion
of the prepayment amount available to prepay Term Loan B
Lenders (LESS any amounts that would otherwise be payable to
Declining B Lenders) shall be applied ratably to prepay Term
Loan B Principal Debt owed to Term Loan B Lenders OTHER THAN
Declining B Lenders and any amounts that would otherwise have
been applied to prepay Term Loan B Principal Debt owing to
Declining B Lenders shall instead be applied ratably to prepay
the remaining Term Loan A Principal Debt as provided in
SECTIONS 3.3(b) through 3.3(d); PROVIDED FURTHER, that upon
prepayment in full of the Term Loan B Principal Debt owing to
Term Loan B Lenders OTHER THAN Declining B Lenders the
remainder of any prepayment amount that is to be applied to
Term Loan B Principal Debt shall be applied ratably to prepay
Term Loan B Principal Debt owing to Declining B Lenders. Any
Term Loan B Lender may elect not to accept its ratable share
of a partial prepayment by giving written notice to
Administrative Agent not later than 11:00 a.m. Dallas, Texas
time on the Business Day immediately preceding the scheduled
prepayment date.
10) TERM LOAN C. To the extent there is any Term Loan A
Principal Debt outstanding, any Term Loan C Lender, at its
option, may elect not to accept such partial prepayment under
this SECTION 3.3 (such Lender being a "DECLINING C LENDER"),
in which event the provisions of the next sentence shall
apply. On the prepayment date, an
amount equal to that portion of the prepayment amount
available to prepay Term Loan C Lenders (LESS any amounts
that would otherwise be payable to Declining C Lenders) shall
be applied ratably to prepay Term Loan C Principal Debt owed
to Term Loan C Lenders (OTHER THAN Declining C Lenders) and
any amounts that would otherwise have been applied to prepay
Term Loan C Principal Debt owing to Declining C Lenders shall
instead be applied ratably to prepay the remaining Term Loan
A Principal Debt as provided in SECTIONS 3.3(b) through
3.3(d); PROVIDED FURTHER, that upon prepayment in full of
Term Loan C Principal Debt owing to Term Loan C Lenders OTHER
THAN Declining C Lenders the remainder of any prepayment
amount that is to be applied to Term Loan C Principal Debt
shall be applied ratably to prepay Term Loan C Principal Debt
owing to Declining C Lenders. Any Term Loan C Lender may
elect not to accept its ratable share of a partial prepayment
by giving written notice to Administrative Agent not later
than 11:00 a.m. Dallas, Texas time on the Business Day
immediately preceding the scheduled prepayment date.
INTEREST OPTIONS. Except that the
Eurodollar Rate may not be selected when a Default or
Potential Default exists and EXCEPT as otherwise provided in
this Agreement, Borrowings shall bear interest at a rate per
annum equal to the LESSER OF (a) as to the respective Type of
Borrowing (as designated by Borrower in accordance with this
Agreement), the Base Rate PLUS the Applicable Margin for Base
Rate Borrowings for the applicable Facility or the Adjusted
Eurodollar Rate PLUS the Applicable Margin for Eurodollar Rate
Borrowings for the applicable Facility, AND (b) the Maximum
Rate. Each change in the Base Rate or the Maximum Rate,
subject to the terms of this Agreement, will become effective,
without notice to Borrower or any other Person, upon the
effective date of such change.
QUOTATION OF RATES. It is hereby
acknowledged that a Responsible Officer or other appropriately
designated officer of Borrower may call Administrative Agent
on or before the date on which a Borrowing Notice is to be
delivered by Borrower in order to receive an indication of the
rates then in effect, but such indicated rates shall neither
be binding upon Administrative Agent or Lenders nor affect the
rate of interest which thereafter is actually in effect when
the Borrowing Notice is given or on the Borrowing Date.
DEFAULT RATE. At the option of
Required Lenders and to the extent permitted by Law, all past-
due Principal Debt and all past-due interest accruing thereon
shall bear interest from maturity (stated or by acceleration)
at the Default Rate until paid, regardless whether such
payment is made before or after entry of a judgment; PROVIDED
THAT, the Default Rate shall automatically apply in the case
of SECTIONS 2.5(c), 2.6(a), and 11.3 where the Default Rate is
specified.
INTEREST RECAPTURE. If the
designated rate applicable to any Borrowing exceeds the
Maximum Rate, the rate of interest on such Borrowing shall be
limited to the Maximum Rate, but any subsequent reductions in
such designated rate shall not reduce the rate of interest
thereon below the Maximum Rate until the total amount of
interest accrued thereon equals the amount of interest which
would have accrued thereon if such designated rate had at all
times been in effect. In the event that at maturity (stated or
by acceleration), or at final payment of the Principal Debt,
the total amount of interest paid or accrued is less than the
amount of interest which would have accrued if such designated
rates had at all times been in effect, then, at such time and
to the extent permitted by Law, Borrower shall pay an amount
equal to the difference between (a) the
LESSER OF the amount of interest which would have accrued if
such designated rates had at all times been in effect AND the
amount of interest which would have accrued if the Maximum
Rate had at all times been in effect, and (b) the amount of
interest actually paid or accrued on the Principal Debt.
INTEREST CALCULATIONS. Interest will
be calculated on the basis of actual number of days (including
the first day but excluding the last day) elapsed but computed
as if each calendar year consisted of 360 days in the case of
a Eurodollar Rate Borrowing (UNLESS the calculation would
result in an interest rate greater than the Maximum Rate, in
which event interest will be calculated on the basis of a year
of 365 or 366 days, as the case may be), and 365 or 366 days,
as the case may be, in the case of a Base Rate Borrowing. All
interest rate determinations and calculations by
Administrative Agent are conclusive and binding absent
manifest error.
MAXIMUM RATE. Regardless of any
provision contained in any Loan Document, neither
Administrative Agent nor any Lender shall ever be entitled to
contract for, charge, take, reserve, receive, or apply, as
interest on all or any part of the Obligation, any amount in
excess of the Maximum Rate, and, if Lenders ever do so, then
such excess shall be deemed a partial prepayment of principal
and treated hereunder as such and any remaining excess shall
be refunded to Borrower. In determining if the interest paid
or payable exceeds the Maximum Rate, Borrower and Lenders
shall, to the maximum extent permitted under applicable Law,
(a) treat all Borrowings as but a single extension of credit
(and Lenders and Borrower agree that such is the case and that
provision herein for multiple Borrowings is for convenience
only), (b) characterize any nonprincipal payment as an
expense, fee, or premium rather than as interest, (c) exclude
voluntary prepayments and the effects thereof, and (d)
amortize, prorate, allocate, and spread the total amount of
interest throughout the entire contemplated term of the
Obligation. However, if the Obligation is paid and performed
in full prior to the end of the full contemplated term
thereof, and if the interest received for the actual period of
existence thereof exceeds the Maximum Amount, Lenders shall
refund such excess, and, in such event, Lenders shall not, to
the extent permitted by Law, be subject to any penalties
provided by any Laws for contracting for, charging, taking,
reserving, or receiving interest in excess of the Maximum
Amount. If the Laws of the State of Texas are applicable for
purposes of determining the "MAXIMUM RATE" or the "MAXIMUM
AMOUNT," then those terms mean the "WEEKLY CEILING" from time
to time in effect under TEXAS FINANCE CODE SECTION 303.305, as
amended. Borrower agrees that CHAPTER 346 of the TEXAS FINANCE
CODE, as amended (which regulates certain revolving credit
loan accounts and revolving tri-party accounts), does not
apply to the Obligation.
INTEREST PERIODS. When Borrower
requests any Eurodollar Rate Borrowing, Borrower may elect the
interest period (each an "INTEREST PERIOD") applicable
thereto, which shall be, at Borrower's option and subject to
availability, one, two, three, or six months; PROVIDED,
HOWEVER, that: (a) the initial Interest Period for a
Eurodollar Rate Borrowing shall commence on the date of such
Borrowing (including the date of any conversion thereto), and
each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next
preceding Interest Period applicable thereto expires; (b) if
any Interest Period for a Eurodollar Rate Borrowing begins on
a day for which there is no numerically corresponding Business
Day in the calendar month at the end of such Interest Period,
then such Interest Period shall end on the last Business Day
in the calendar month at the end of such Interest Period); (c)
no Interest Period may be chosen with respect to any portion
of the Principal Debt which
would extend beyond the scheduled repayment date (including
any dates on which mandatory prepayments are required to be
made) for such portion of the Principal Debt; and (d) no more
than an aggregate of twelve Interest Periods shall be in
effect at one time.
CONVERSIONS. Borrower may (a)
convert a Eurodollar Rate Borrowing on the last day of the
applicable Interest Period to a Base Rate Borrowing, (b)
convert a Base Rate Borrowing at any time to a Eurodollar Rate
Borrowing, and (c) elect a new Interest Period (in the case of
a Eurodollar Rate Borrowing), by giving a Conversion Notice of
such intent to Administrative Agent no later than 10:00 a.m.
Dallas, Texas time on the third Business Day prior to the date
of conversion or the last day of the Interest Period, as the
case may be (in the case of a conversion to a Eurodollar Rate
Borrowing or an election of a new Interest Period), and no
later than 10:00 a.m. Dallas, Texas time one Business Day
prior to the last day of the Interest Period (in the case of a
conversion to a Base Rate Borrowing); PROVIDED THAT, the
principal amount converted to, or continued as, a Eurodollar
Rate Borrowing shall be in an amount not less than $7,000,000
or a greater integral multiple of $1,000,000 (or such lesser
amount as is outstanding under any Facility). Administrative
Agent shall timely notify each Lender with respect to each
Conversion Notice. Absent Borrower's Conversion Notice or
election of a new Interest Period, a Eurodollar Rate Borrowing
shall be deemed converted to a Base Rate Borrowing effective
as of the expiration of the Interest Period applicable
thereto. No Eurodollar Rate Borrowing may be EITHER made or
continued as a Eurodollar Rate Borrowing, and no Base Rate
Borrowing may be converted to a Eurodollar Rate Borrowing, if
the interest rate for such Eurodollar Rate Borrowing would
exceed the Maximum Rate. The Right to convert from a Base Rate
Borrowing to a Eurodollar Rate Borrowing, or to continue as a
Eurodollar Rate Borrowing, shall not be available during the
occurrence of a Default or a Potential Default.
ORDER OF APPLICATION.
NO DEFAULT. If no Default or Potential Default exists and if
no order of application is otherwise specified in SECTION 3.3 or
otherwise in the Loan Documents, payments and prepayments of the
Obligation shall be applied first to fees, second to accrued interest
then due and payable on the Principal Debt, and then to the remaining
Obligation in the order and manner as Borrower may direct.
DEFAULT. If a Default or Potential Default exists (or if
Borrower fails to give directions as permitted under SECTION 3.12(a)),
any payment or prepayment (including proceeds from the exercise of any
Rights) shall be applied to the Obligation in the following order: (i)
to the ratable payment of all fees, expenses, and indemnities for which
Agents or Lenders have not been paid or reimbursed in accordance with
the Loan Documents (as used in this SECTION 3.12(b)(i), a "RATABLE
PAYMENT" for any Lender or any Agent shall be, on any date of
determination, that proportion which the portion of the total fees,
expenses, and indemnities owed to such Lender or such Agent bears to
the total aggregate fees and indemnities owed to all Lenders and Agents
on such date of determination); (ii) to the ratable payment of accrued
and unpaid interest on the Principal Debt (as used in this SECTION
3.12(b)(ii), "RATABLE PAYMENT" means, for any Lender, on any date of
determination, that proportion which the accrued and unpaid interest on
the Principal Debt owed to such Lender bears to the total accrued and
unpaid interest on the Principal Debt owed to all Lenders); (iii) to
the ratable payment of the Swing Line Principal Debt which is due and
payable and which remains unfunded by any Borrowing under the Revolver
Facility; PROVIDED THAT, such payments shall be allocated ratably among
the Swing Line Lender and the Revolver Lenders
which have funded their participations in the Swing Line Principal
Debt; (iv) to the ratable payment of any reimbursement obligation with
respect to any LC issued pursuant to the Agreement which is due and
payable and which remains unfunded by any Borrowing under the Revolver
Facility; PROVIDED THAT, such payments shall be allocated ratably
among the issuer of the LC and the Lenders which have funded their
participations in such LC; (v) to the ratable payment of the Principal
Debt (as used in this SECTION 3.12(b)(v), "RATABLE PAYMENT" means for
any Lender, on any date of determination, that proportion which the
Principal Debt owed to such Lender bears to the Principal Debt owed to
all Lenders); (vi) to provide cash collateral in an amount EQUAL TO
110% of the LC Exposure then existing in accordance with SECTION
2.5(g); and (vii) to the payment of the remaining Obligation in the
order and manner Required Lenders deem appropriate.
Subject to the provisions of SECTION 12 and PROVIDED THAT
Administrative Agent shall not in any event be bound to inquire into or
to determine the validity, scope, or priority of any interest or
entitlement of any Lender and may suspend all payments or seek
appropriate relief (including, without limitation, instructions from
Required Lenders or an action in the nature of interpleader) in the
event of any doubt or dispute as to any apportionment or distribution
contemplated hereby, Administrative Agent shall promptly distribute
such amounts to each Lender in accordance with the Agreement and the
related Loan Documents.
SHARING OF PAYMENTS, ETC. If any Lender
shall obtain any payment or prepayment with respect to the Obligation
(whether voluntary, involuntary, or otherwise, including, without
limitation, as a result of exercising its Rights under SECTION 3.14)
which is in excess of its share of any such payment in accordance with
the relevant Rights of Lenders under the Loan Documents (EXCEPT as
provided with respect to the Term Loan Facility opt-outs Rights in
SECTION 3.3(f), such Lender shall purchase from the other Lenders such
participations as shall be necessary to cause such purchasing Lender to
share the excess payment with each other Lender in accordance with the
relevant Rights of Lenders under the Loan Documents. If all or any
portion of such excess payment is subsequently recovered from such
purchasing Lender, then the purchase shall be rescinded and the
purchase price restored to the extent of such recovery. Borrower agrees
that any Lender purchasing a participation from another Lender pursuant
to this Section may, to the fullest extent permitted by Law, exercise
all of its Rights of payment (including the Right of offset) with
respect to such participation as fully as if such Lender were the
direct creditor of Borrower in the amount of such participation.
OFFSET. If a Default exists, each Lender
shall be entitled to exercise (for the benefit of all Lenders in
accordance with SECTION 3.13) the Rights of offset and/or banker's Lien
against each and every account and other property, or any interest
therein, which any Company may now or hereafter have with, or which is
now or hereafter in the possession of, such Lender to the extent of the
full amount of the Obligation.
BOOKING BORROWINGS. To the extent permitted
by Law, any Lender may make, carry, or transfer its Borrowings at, to,
or for the account of any of its branch offices or the office of any of
its Affiliates; PROVIDED THAT, no Affiliate shall be entitled to
receive any greater payment under SECTION 4 than the transferor Lender
would have been entitled to receive with respect to such Borrowings.
SECTION CHANGE IN CIRCUMSTANCES.
INCREASED COST AND REDUCED RETURN.
CHANGES IN LAW. If, after the date hereof, the adoption of any
applicable Law or any change in any applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority,
or compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such Governmental Authority:
11) Shall subject such Lender (or its Applicable Lending
Office) to any Tax or other charge with respect to any
Eurodollar Rate Borrowing, its Notes, or its obligation to
loan Eurodollar Rate Borrowings, or change the basis of
taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under the Loan Documents in respect
of any Eurodollar Rate Borrowings (OTHER THAN Taxes imposed on
the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable
Lending Office);
12) Shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (OTHER
THAN the Reserve Requirement utilized in the determination of
the Adjusted Eurodollar Rate) relating to any extensions of
credit or other assets of, or any deposits with or other
liabilities or commitments of, such Lender (or its Applicable
Lending Office), including the commitment of such Lender
hereunder; or
13) Shall impose on such Lender (or its Applicable Lending
Office) or the London interbank market any other condition
affecting the Loan Documents or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into,
continuing, or maintaining any Eurodollar Rate Borrowings or to reduce
any sum received or receivable by such Lender (or its Applicable
Lending Office) under the Loan Documents with respect to any Eurodollar
Rate Borrowing, then Borrower shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for the portion of
such increased cost or reduction that relate to such Eurodollar Rate
Borrowing. If any Lender requests compensation by Borrower under this
SECTION 4.1(a), Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such Lender to loan or
continue Borrowings of the Type with respect to which such compensation
is requested, or to convert Borrowings of any other Type into
Borrowings of such Type, until the event or condition giving rise to
such request ceases to be in effect (in which case the provisions of
SECTION 4.4 shall be applicable); PROVIDED THAT such suspension shall
not affect the Right of such Lender to receive the compensation so
requested.
CAPITAL ADEQUACY. If, after the date hereof, any Lender shall
have determined that the adoption of any applicable Law regarding
capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority has or would have the effect of
reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request,
or directive (taking into consideration its policies with respect to
capital adequacy), then from time to time upon demand Borrower shall
pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
CHANGES IN APPLICABLE LENDING OFFICE; COMPENSATION STATEMENT.
Each Lender shall promptly notify Borrower and Administrative Agent of
any event of which it has knowledge, occurring after the date hereof,
which will entitle such Lender to compensation pursuant to this Section
and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this
Section shall furnish to Borrower and Administrative Agent a statement
setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error.
In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
LIMITATION ON TYPES OF LOANS. If on or prior
to the first day of any Interest Period for any Eurodollar Rate
Borrowing:
INABILITY TO DETERMINE EURODOLLAR RATE. Administrative Agent
determines (which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
COST OF FUNDS. Required Lenders determine (which determination
shall be conclusive) and notify Administrative Agent that the Adjusted
Eurodollar Rate will not adequately and fairly reflect the cost to
Lenders of funding Eurodollar Rate Borrowings for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof
specifying the relevant amounts or periods, and SO LONG AS such
condition remains in effect, Lenders shall be under no obligation to
fund additional Eurodollar Rate Borrowings, continue Eurodollar Rate
Borrowings, or to convert Base Rate Borrowings into Eurodollar Rate
Borrowings, and Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Eurodollar Rate Borrowings,
EITHER prepay such Borrowings or convert such Borrowings into Base Rate
Borrowings in accordance with the terms of this Agreement.
ILLEGALITY. Notwithstanding any other
provision of the Loan Documents, in the event that it becomes unlawful
for any Lender or its Applicable Lending Office to make, maintain, or
fund Eurodollar Rate Borrowings hereunder, then such Lender shall
promptly notify Borrower thereof and such Lender's obligation to make
or continue Eurodollar Rate Borrowings and to convert other Base Rate
Borrowings into Eurodollar Rate Borrowings shall be suspended until
such time as such Lender may again make, maintain, and fund Eurodollar
Rate Borrowings (in which case the provisions of SECTION 4.4 shall be
applicable).
TREATMENT OF AFFECTED LOANS. If the
obligation of any Lender to fund Eurodollar Rate Borrowings or to
continue, or to convert Base Rate Borrowings into Eurodollar Rate
Borrowings, shall be suspended pursuant to SECTIONS 4.1, 4.2, or 4.3,
such Lender's Eurodollar Rate Borrowings shall be automatically
converted into Base Rate Borrowings on the last day(s) of the then
current Interest Period(s) for Eurodollar Rate Borrowings (or, in the
case of a conversion required by SECTION 4.3, on such earlier date as
such Lender may specify to Borrower with a copy to Administrative
Agent) and, UNLESS and until such Lender gives notice as provided below
that the circumstances specified in SECTIONS 4.1, 4.2, or 4.3 that gave
rise to such conversion no longer exist:
To the extent that such Lender's Eurodollar Rate
Borrowings have been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's Eurodollar
Rate Borrowings shall be applied instead to its Base Rate Borrowings;
and
All Borrowings that would otherwise be made or
continued by such Lender as Eurodollar Rate Borrowings shall be made or
continued instead as Base Rate Borrowings, and all Borrowings of such
Lender that would otherwise be converted into Eurodollar Rate
Borrowings shall be converted instead into (or shall remain as) Base
Rate Borrowings.
If such Lender gives notice to Borrower (with a copy to Administrative
Agent) that the circumstances specified in SECTIONS 4.1, 4.2, or 4.3
that gave rise to the conversion of such Lender's Eurodollar Rate
Borrowings pursuant to this SECTION 4.4 no longer exist (which such
Lender agrees to do promptly upon such circumstances ceasing to exist)
at a time when Eurodollar Rate Borrowings made by other Lenders are
outstanding, such Lender's Base Rate Borrowings shall be automatically
converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Rate Borrowings, to the
extent necessary so that, after giving effect thereto, all Eurodollar
Rate Borrowings held by Lenders and by such Lender are held pro rata
(as to principal amounts, Types, and Interest Periods) in accordance
with their respective Committed Sums for the applicable Facility.
COMPENSATION.
Upon the request of any Lender, Borrower shall pay to
such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost,
or expense (including loss of anticipated profits) incurred by it as a
result of:
14) Any payment, prepayment, or conversion of
a Eurodollar Rate Borrowing for any reason (including,
without limitation, the acceleration of the loan pursuant to
SECTION 11.1 or as a result of the syndication of any
Facility by Administrative Agent during the 180-day period
immediately following the Closing Date) on a date OTHER THAN
the last day of the Interest Period for such Borrowing; or
15) Any failure by Borrower for any reason
(including, without limitation, the failure of any condition
precedent specified in SECTION 7.3 to be satisfied) to
borrow, convert, continue, or prepay a Eurodollar Rate
Borrowing on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant
Borrowing Notice, or notice of prepayment, continuation, or
conversion under this Agreement.
If any Lender requests compensation under SECTION
4.1, or if any Lender is unable to fund or continue a Eurodollar Rate
Borrowing as contemplated in SECTION 4.3 (collectively, "ADDITIONAL
AMOUNTS"), then Borrower may, at its sole expense and effort, upon
written notice to such Lender and Administrative Agent, require such
Lender to assign and delegate, without recourse, all its interests,
Rights, and obligations under the Loan Documents to an Eligible
Assignee that shall assume such obligations; PROVIDED THAT, (i)
Borrower shall have received the prior written consent of
Administrative Agent to any such assignment; (ii) such Lender shall
have received payment from Borrower of any Additional Amounts owed to
such Lender by Borrower for periods prior to the replacement of such
Lender and any costs incurred as a result of such replacement of a
Lender; (iii) such assignment will result in reduction or elimination
of the Additional Amounts; and (iv) such assignment and acceptance
shall be made in accordance with, and subject to the requirements and
restrictions contained in, SECTION 13.13(b). A Lender shall not be
required to make any such assignment and delegation if, prior thereto,
as a result of a
waiver by such Lender or otherwise, the circumstances entitling
Borrower to require such assignment and delegation cease to apply.
TAXES.
GENERAL. Any and all payments by Borrower to or for the
account of any Lender or Administrative Agent under any Loan Document
shall be made free and clear of and without deduction for any and all
present or future Taxes, EXCLUDING, in the case of each Lender and
Administrative Agent, Taxes imposed (by withholding or otherwise) on
its income and franchise Taxes imposed on it by the jurisdiction under
the Laws of which such Lender (or its Applicable Lending Office) or
Administrative Agent (as the case may be) is organized, or any
political subdivision thereof. If Borrower shall be required by Law to
deduct any Taxes from or in respect of any SUM payable under any Loan
Document to any Lender or Administrative Agent, (i) the SUM payable
shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable
under this SECTION 4.6) such Lender or Administrative Agent receives an
amount equal to the SUM it would have received had no such deductions
been made, (ii) Borrower shall make such deductions, (iii) Borrower
shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Law, and (iv) Borrower
shall furnish to Administrative Agent, at its address listed in
SCHEDULE 2.1, the original or a certified copy of a receipt evidencing
payment thereof.
STAMP AND DOCUMENTARY TAXES. In addition, Borrower agrees to
pay any and all present or future stamp or documentary Taxes and any
other excise or property Taxes or charges or similar levies which arise
from any payment made under any Loan Document or from the execution or
delivery of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "OTHER TAXES").
INDEMNIFICATION FOR TAXES. Borrower agrees to indemnify each
Lender and Administrative Agent for the full amount of Taxes and Other
Taxes (including, without limitation, any Taxes or Other Taxes imposed
or asserted by any jurisdiction on amounts payable under this SECTION
4.6) paid by such Lender or Administrative Agent (as the case may be)
and any liability (including penalties, interest, and expenses) arising
therefrom or with respect thereto.
WITHHOLDING TAX FORMS. Each Lender organized under the Laws of
a jurisdiction outside the United States, on or prior to the Closing
Date in the case of each Lender listed on the signature pages hereof
and on or prior to the date on which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in
writing by Borrower or Administrative Agent (but only SO LONG AS such
Lender remains lawfully able to do so), shall provide Borrower and
Administrative Agent with (i) if such Lender is a "BANK" within the
meaning of SECTION 881(c)(3)(A) of the Code, Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled
to benefits under an income Tax treaty to which the United States is a
party which reduces the rate of withholding Tax on payments of interest
or certifying that the income receivable pursuant to the Loan Documents
is effectively connected with the conduct of a trade or business in the
United States, or (ii) if such Lender is not a "BANK" within the
meaning of SECTION 881(c)(3)(A) of the Code and intends to claim an
exemption from United States withholding Tax under SECTION 871(h) or
881(c) of the Code with respect to payments of "PORTFOLIO INTEREST," a
Form W-8, or any successor form prescribed by the Internal Revenue
Service, and a certificate representing that such Lender is not a bank
for purposes of SECTION 881(c) of the Code, is not a ten-percent
shareholder (within the meaning of SECTION 871(h)(3)(B) of the Code) of
Borrower, and is not a controlled foreign corporation related to
Borrower (within
the meaning of SECTION 864(d)(4) of the Code). Each Lender which so
delivers a W-8, Form 1001, or 4224 further undertakes to deliver to
Borrower and Administrative Agent additional forms (or a successor
form) on or before the date such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most
recent form so delivered by it, in each case certifying that such
Lender is entitled to receive payments from Borrower under any Loan
Document without deduction or withholding (or at a reduced rate of
deduction or withholding) of any United States federal income Taxes,
UNLESS an event (including, without limitation, any change in Law)
has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or
which would prevent such Lender from duly completing and delivering
any such form with respect to it, and such Lender advises Borrower
and Administrative Agent that it is not capable of receiving such
payments without any deduction or withholding of United States
federal income Tax.
FAILURE TO PROVIDE WITHHOLDING FORMS; CHANGES IN TAX LAWS. For
any period with respect to which a Lender has failed to provide
Borrower and Administrative Agent with the appropriate form pursuant to
SECTION 4.6(d) (UNLESS such failure is due to a change in Law occurring
subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification under
SECTION 4.6(a) or 4.6(c) with respect to Taxes imposed by the United
States; PROVIDED, HOWEVER, that should a Lender, which is otherwise
exempt from or subject to a reduced rate of withholding Tax, become
subject to Taxes because of its failure to deliver a form required
hereunder, Borrower shall take such steps as such Lender shall
reasonably request to assist such Lender to recover such Taxes.
CHANGE IN APPLICABLE LENDING OFFICE. If Borrower is required
to pay additional amounts to or for the account of any Lender pursuant
to this SECTION 4.6, then such Lender will agree to use reasonable
efforts to change the jurisdiction of its Applicable Lending Office so
as to eliminate or reduce any such additional payment which may
thereafter accrue if such change, in the judgment of such Lender, is
not otherwise disadvantageous to such Lender.
TAX PAYMENT RECEIPT. Within 30 days after the date of any
payment of Taxes, Borrower shall furnish to Administrative Agent the
original or a certified copy of a receipt evidencing such payment.
SURVIVAL. Without prejudice to the survival of any other
agreement of Borrower hereunder, the agreements and obligations of
Borrower contained in this SECTION 4.6 shall survive the termination of
the Total Commitment and the payment in full of the Obligation.
SECTION FEES.
TREATMENT OF FEES. Except as otherwise
provided by Law, the fees described in this SECTION 5: (a) do not
constitute compensation for the use, detention, or forbearance of
money, (b) are in addition to, and not in lieu of, interest and
expenses otherwise described in the Loan Documents, (c) shall be
payable in accordance with SECTION 3.1(c), (d) shall be non-refundable,
(e) shall, to the fullest extent permitted by Law, bear interest, if
not paid when due, at the Default Rate, and (f) shall be calculated on
the basis of actual number of days (including the first day but
excluding the last day) elapsed, but computed as if each calendar year
consisted of 360 days, UNLESS such computation would result in interest
being computed in excess of the Maximum Rate in which event such
computation shall be made on the basis of a year of 365 or 366 days, as
the case may be.
FEES OF ADMINISTRATIVE AGENT AND ARRANGER.
may be, solely for their respective accounts, the fees described in the
commitment letter and attached summary of terms and the separate fee
letter, each dated as of October 5, 1999, among AT&T Corp.,
Communications, Administrative Agent, and Arranger, which payments
shall be made on the dates specified, and in amounts calculated in
accordance with, such letter agreements, and which obligations of AT&T
Corp. and Communications to pay such fees are expressly assumed by
Borrower.
REVOLVER FACILITY COMMITMENT FEES. Following
the Closing Date, Borrower shall pay to Administrative Agent, for the
ratable account of Revolver Lenders, a commitment fee, calculated daily
from the Closing Date but payable in installments in arrears each March
31, June 30, September 30, and December 31 and on the Termination Date
for the Revolver Facility, commencing March 31, 2000. On any day of
determination, the commitment fee shall be an amount equal to the
Applicable Margin for Commitment Fees MULTIPLIED BY the amount by which
(a) the Revolver Commitment on such day exceeds (b) the Revolver
Commitment Usage on such day. Each such installment shall be calculated
in accordance with SECTION 5.1(f). Solely for the purposes of this
SECTION 5.3, (i) determinations of the average daily Revolver
Commitment Usage shall exclude the Swing Line Principal Debt (PROVIDED
THAT, solely for Swing Line Lender, Borrowings under the Swing Line
Subfacility will be included in determining the Revolver Commitment
Usage for Swing Line Lender up to, but not in excess of, the amount
which causes the Revolver Commitment Usage of Swing Line Lender to
equal the Committed Sum of such Lender under the Revolver Facility; and
(ii) "RATABLE" shall mean, for any period of determination, with
respect to any Revolver Lender, that proportion which (x) the average
daily unused Committed Sum under the Revolver Facility of such
Revolver Lender during such period bears to (y) the amount of the
average daily unused Revolver Commitment during such period.
LC FEES. As an inducement for the issuance
(including, without limitation, any extension) of each LC, Borrower
agrees to pay to Administrative Agent:
For the account of each Revolver Lender, according to
each Revolver Lender's Commitment Percentage under the Revolver
Facility on the day the fee is payable, an issuance fee payable
quarterly in arrears for so long as each such LC is outstanding, on the
last Business Day of each March, June, September, and December and on
the expiry date of the LC. The issuance fee for each LC or any
extension thereof shall be in an amount equal to the product of (a) the
Applicable Margin for Eurodollar Rate Borrowings under the Revolver
Facility in effect on the date of payment of such fee (calculated on a
per annum basis) MULTIPLIED BY (b) the average daily undrawn amount of
such LC.
For the account of Administrative Agent, as the
issuer of LCs, payable on the date of issuance of any LC (or any
extension thereof) a fronting fee of 0.125% of the face amount of such
LC (or extensions thereof). In addition, Borrower shall pay to
Administrative Agent, for its individual account, standard
administrative charges for LC amendments.
SECTION SECURITY; GUARANTIES.
GUARANTIES. As an inducement to Agents and
Lenders to enter into this Agreement, Borrower shall cause Parent and
each of Parent's Subsidiaries (OTHER THAN Borrower) to execute and
deliver to Administrative Agent a Guaranty substantially in the form
and upon the terms of EXHIBIT C, providing for the guaranty of payment
and performance of the Obligation. In addition, promptly after the
formation or Acquisition of any new entity that is (or becomes) a
Subsidiary of Parent, Borrower shall cause such new entity to execute
and deliver to Administrative Agent a Guaranty substantially in the
form and upon the terms of EXHIBIT C, providing for the guaranty of
payment and performance of the Obligation.
COLLATERAL. To secure the full and complete
payment and performance of the Obligation, Borrower shall (and shall
cause each other Company to) enter into Collateral Documents (in form
and substance acceptable to Administrative Agent) pursuant to which,
among other things, each such entity shall, to the extent permitted by
applicable Law, grant, pledge, assign, and create first priority Liens
(EXCEPT to the extent Permitted Liens affect such priority) in favor of
Administrative Agent (for the ratable benefit of Lenders) in and to
100% of each such Company's Rights, titles, and interests in (a) the
issued and outstanding stock, equity, or other investment securities of
each Subsidiary of such Company, and (b) all other assets (tangible,
intangible, real, or personal) of such Company.
FUTURE LIENS. Promptly after (a) the
acquisition of any material assets (real, personal, tangible, or
intangible) by any Company, (b) the removal, termination, or expiration
of any prohibitions upon the granting of a Lien in any asset (real,
personal, tangible, or intangible) of any Company, or (c) upon the
designation, formation, or Acquisition of any new Subsidiary of any
Company (the assets described in CLAUSES (a) through (c) hereof are
referred to herein as the "ADDITIONAL ASSETS"), Borrower shall (or
shall cause the appropriate Company to) execute and deliver to
Administrative Agent all further instruments and documents (including,
without limitation, Collateral Documents and all certificates and
instruments representing shares of stock or evidencing Debt and any
realty appraisals as Administrative Agent may require with respect to
any such Additional Assets), and shall take all further action that may
be necessary or desirable, or that Administrative Agent may reasonably
request, to grant, perfect, and protect Liens in favor of
Administrative Agent for the benefit of Lenders in such Additional
Assets, as security for the Obligation to the extent Liens are required
in such assets pursuant to SECTION 6.2; IT BEING EXPRESSLY UNDERSTOOD
that the granting of such additional security for the Obligation is a
material inducement to the execution and delivery of this Agreement by
each Lender. Upon satisfying the terms and conditions hereof, such
Additional Assets shall be included in the "COLLATERAL" for all
purposes under the Loan Documents, and all references to the
"COLLATERAL" in the Loan Documents shall include the Additional Assets.
RELEASE OF COLLATERAL.
SALE OR DISPOSITION OF COLLATERAL. Upon any sale, transfer, or
disposition of Collateral which is expressly permitted pursuant to the
Loan Documents (or is otherwise authorized by Required Lenders or
Lenders, as the case may be), and upon ten Business Days prior written
request by Borrower (which request must be accompanied by true and
correct copies of (i) all documents of transfer or disposition,
including any contract of sale, (ii) a preliminary closing statement
and instructions to the title company, if any, and (iii) all requested
release instruments), Administrative Agent shall (and is hereby
irrevocably authorized by Lenders to) execute such documents as may be
necessary to evidence the release of Liens granted to Administrative
Agent for the benefit of Lenders pursuant hereto in such Collateral.
VENDOR FINANCING. To the extent any Company incurs Debt
permitted by SECTION 9.12(g) that is secured by Liens permitted by
SECTION 9.13(b)(vii), Administrative Agent is hereby authorized by
Lenders to execute and deliver such releases or subordination of Liens
on the Collateral so financed upon ten Business Days prior written
request by Borrower supported by evidence that such Debt and Liens are
permitted by the terms of this Agreement and accompanied
by appropriate release or subordination instruments, which must be in
form and substance satisfactory to Administrative Agent.
GENERAL PROVISIONS. The actions of Administrative Agent under
this SECTION 6.4 are subject to the following: (i) no such release of
Liens or Guaranties shall be granted if any Default or Potential
Default has occurred and is continuing, including, without limitation,
the failure to make certain mandatory prepayments in accordance with
SECTION 3.3(b) in conjunction with the sale or transfer of such
Collateral; (ii) Administrative Agent shall not be required to execute
any such document on terms which, in Administrative Agent's opinion,
would expose Administrative Agent to liability or create any obligation
or entail any consequence OTHER THAN the release of such Liens without
recourse or warranty; and (iii) such release shall not in any manner
discharge, affect, or impair the Obligation or Liens upon (or
obligations of any Company in respect of) all interests retained by the
Companies, including, without limitation, the proceeds of any sale, all
of which shall continue to constitute Collateral.
NEGATIVE PLEDGE. Notwithstanding the
provisions of SECTION 6.2 or SECTION 6.3, the Companies shall not be
required to: (a) perfect Liens on certain assets constituting interests
in third party leases for retail stores, vehicles, fixtures, cellular
transmission towers, the Laredo Joint Venture, ▇▇▇▇▇ CellTelCo
Partnership (UNLESS AND UNTIL the conditions set forth in ITEM 2 of
SCHEDULE 7.1A have been met), real estate, or assets located in foreign
jurisdictions (the "EXCLUDED ASSETS") SO LONG AS the aggregate value
(on any date of determination) of the Excluded Assets does not exceed
$125,000,000 prior to the occurrence of a Default or Potential Default,
or $25,000,000 on and after the occurrence of a Default or Potential
Default; or (b) grant specific assignments of easements, licenses,
permits, certificates of compliance, and certificates of approval
issued by regulatory authorities, franchises, or like grants of
authority or service agreements. To the extent contemplated by the
first sentence of this SECTION 6.5 or to the extent Administrative
Agent and Required Lenders agree to delay the perfection or attachment
of any Lien contemplated by SECTION 6.2 or SECTION 6.3 for whatever
reason, the Companies hereby covenant and agree not to directly create,
incur, grant, suffer, or permit to be created or incurred any Lien on
any such assets, OTHER THAN Permitted Liens. Furthermore, after the
occurrence of a Default or Potential Default and within 60 days of the
request therefor by Administrative Agent, Borrower shall (or shall
cause each other Company to) execute and deliver to Administrative
Agent all instruments and documents (including, without limitation,
certificates and instruments and documents representing shares of stock
or evidencing Debt) and shall take all further action that may be
necessary or desirable, or that Administrative Agent may reasonably
request, to grant, perfect, and protect Liens in favor of
Administrative Agent for the benefit of Lenders, in such assets, as
security for the Obligation; IT BEING EXPRESSLY UNDERSTOOD that the
provisions of this negative pledge are a material inducement to the
execution and delivery of this Agreement by each Lender.
CONTROL; LIMITATION OF RIGHTS.
Notwithstanding anything in any Loan Document to the contrary, (a) the
transactions contemplated hereby (i) do not and will not constitute,
create, or have the effect of constituting or creating, directly or
indirectly, actual or practical ownership of the Companies by Agents or
Lenders, or control, affirmative or negative, direct or indirect, by
Agents or Lenders over the management or any other aspect of the
operation of the Companies, which ownership or control remains
exclusively and at all times in the Companies, and (ii) do not and will
not constitute the transfer, assignment, or disposition in any manner,
voluntary or involuntary, directly or indirectly, of any Authorization
at any time issued by the FCC or any PUC to any Company, or the
transfer of control of any Company within the meaning of SECTION 310(d)
of the Communications Act; and (b) Administrative Agent shall not,
without first obtaining the approval of the FCC or any applicable PUC,
take any action pursuant
to any Loan Document that would constitute or result in any
assignment of any Authorization or any change of control of any
Company, if such assignment or change of control would require, under
then existing Law (including the written rules and regulations
promulgated by the FCC or any such PUC), the prior approval of the
FCC or any such PUC.
SECTION CONDITIONS PRECEDENT.
CONDITIONS PRECEDENT TO CLOSING. This
Agreement shall not become effective, and Lenders shall not be
obligated to advance any Borrowing or issue any LC, UNLESS
Administrative Agent has received all of the agreements, documents,
instruments, and other items described on SCHEDULE 7.1 (OTHER THAN each
item, if any, listed on SCHEDULE 7.1A, which items are hereby permitted
to be delivered after the Closing Date but not later than the
respective date for delivery of each such item specified on SCHEDULE
7.1A or such later date as agreed to by Administrative Agent.
CONDITIONS PRECEDENT TO A PERMITTED
ACQUISITION. On or prior to the consummation of any Permitted
Acquisition (whether or not the Purchase Price for such Permitted
Acquisition is funded by Borrowings), Borrower shall have satisfied the
conditions and delivered, or caused to be delivered, to Administrative
Agent, all documents and certificates set forth on SCHEDULE 7.2 by no
later than the dates specified for satisfaction of such conditions on
SCHEDULE 7.2. Promptly upon receipt of each Permitted Acquisition
Compliance Certificate and each Permitted Acquisition Loan Closing
Certificate, Administrative Agent shall provide copies of such
certificates to Lenders. All documentation delivered and satisfaction
of conditions pursuant to the requirements of SECTION 7.2 must be
satisfactory to Administrative Agent (and in the case of the
Supplemental Capital Expenditures Budget, must be acceptable to
Administrative Agent, Co-Syndication Agents, and Co-Documentation
Agents). To the extent any Borrowing is being requested in connection
with the consummation of the Permitted Acquisition, the conditions set
forth in SECTIONS 7.2 and 7.3 must be satisfied prior to the making of
any such Borrowing.
CONDITIONS PRECEDENT TO EACH BORROWING.
In addition to the conditions stated in SECTION 7.1 and SECTION 7.2 (as
applicable), Lenders will not be obligated to fund (as opposed to
continue or convert) any Borrowing, and Administrative Agent will not
be obligated to issue any LC, UNLESS on the date of such Borrowing or
issuance (and after giving effect thereto): (a) Administrative Agent
shall have timely received therefor a Borrowing Notice or LC Request
(TOGETHER WITH the applicable LC Agreement); (b) Administrative Agent
shall have received, as applicable, the LC fees provided for in SECTION
5.4; (c) all of the representations and warranties of any Company set
forth in the Loan Documents are true and correct in all material
respects (EXCEPT to the extent that (i) the representations and
warranties speak to a specific date or (ii) the facts on which such
representations and warranties are based have been changed by
transactions contemplated or permitted by the Loan Documents); (d) no
change in the financial condition or business of the Companies which
could reasonably be expected to be a Material Adverse Event shall have
occurred; (e) no Default or Potential Default shall have occurred and
be continuing; (f) the funding of such Borrowings or issuance of such
LC is permitted by Law; (g) in the event all or any part of the
proceeds of the Borrowing will be used to finance a Distribution to the
extent permitted by SECTION 9.21, Administrative Agent shall have
received all such certifications, financial information, and
projections as Administrative Agent may reasonably request; and (h) all
matters related to such Borrowing must be satisfactory to Required
Lenders and their respective counsel in their reasonable determination,
and upon the reasonable request of Administrative Agent, Borrower shall
deliver to Administrative Agent evidence substantiating any of the
matters in the Loan Documents which are necessary to enable Borrower to
qualify for
such Borrowing. Each Borrowing Notice and LC Request delivered to
Administrative Agent shall constitute the representation and warranty
by Borrower to Administrative Agent that, as of the Borrowing Date or
the date of issuance of the LC, the statements above are true and
correct in all respects. Each condition precedent in this Agreement
is material to the transactions contemplated in this Agreement, and
time is of the essence in respect of each thereof. Subject to the
prior approval of Required Lenders, Lenders may fund any Borrowing,
and Administrative Agent may issue any LC, without all conditions
being satisfied, but, to the extent permitted by Law, the same shall
not be deemed to be a waiver of the requirement that each such
condition precedent be satisfied as a prerequisite for any subsequent
funding or issuance, UNLESS Required Lenders specifically waive each
such item in writing.
SECTION REPRESENTATIONS AND WARRANTIES. Each Company
represents and warrants to Administrative Agent and Lenders as follows:
PURPOSE OF CREDIT FACILITY. Borrower will
use (or will invest in, or loan such proceeds to, its Subsidiaries to
so use) all proceeds of Borrowings for one or more of the following:
(a) to finance the cash portion of the acquisition costs incurred by
Borrower in connection with the American Merger and the related costs
and expenses; (b) to refinance substantially all of the indebtedness of
American existing as of the Closing Date in the approximate principal
amount of $1,200,000,000 and as set forth on SCHEDULE 9.12; (c) to
finance Permitted Acquisitions; (d) to finance Capital Expenditures;
(e) for working capital of the Companies; and (f) for general corporate
purposes. No Company is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of
purchasing or carrying any "MARGIN STOCK" within the meaning of
REGULATION U. No part of the proceeds of any Borrowing will be used,
directly or indirectly, for a purpose which violates any Law,
including, without limitation, the provisions of REGULATIONS T, U, or X
(as enacted by the Board of Governors of the Federal Reserve System, as
amended).
EXISTENCE, GOOD STANDING, AUTHORITY, AND
AUTHORIZATIONS. Each Company is duly organized, validly existing, and
in good standing under the Laws of its jurisdiction of organization
(such jurisdictions being identified on SCHEDULE 8.3, as supplemented
and modified in writing from time to time to reflect any changes to
such Schedule as a result of transactions permitted by the Loan
Documents). Except where failure to do so could not reasonably be
expected to be a Material Adverse Event, each Company is duly qualified
to transact business and is in good standing in each jurisdiction where
the nature and extent of its business and properties require the same.
Each Company possesses all Authorizations, including, without
limitation, any Authorization issued by the FCC, necessary or required
in the conduct of its respective business(es), all of which are
described on SCHEDULE 8.2, and the same are valid, binding,
enforceable, and subsisting without any defaults thereunder or
enforceable adverse limitations thereon, EXCEPT where the lack of
enforceability or such defaults could not reasonably be expected to be
a Material Adverse Event, and are not subject to any proceedings or
claims opposing the issuance, development, or use thereof or contesting
the validity thereof. No Authorization, consent, approval, waiver,
license, or formal exemptions from, nor any filing, declaration, or
registration with, any Governmental Authority (federal, state, or
local), non-governmental entity, or other Person under the terms of
contracts or otherwise, is required by reason of or in connection with
the execution and performance of the Loan Documents by the Companies or
consummation of the American Merger, EXCEPT as shall have been obtained
on or prior to, or will become effective concurrently with, the Closing
Date.
SUBSIDIARIES; CAPITAL STOCK. The Companies
have no Subsidiaries EXCEPT as disclosed on SCHEDULE 8.3 (as
supplemented and modified in writing from time to time to
reflect any changes to such Schedule as a result of transactions
permitted by the Loan Documents). All of the outstanding shares of
capital stock (or similar voting interests) of each Company are duly
authorized, validly issued, fully paid, and nonassessable and are
owned of record and beneficially as set forth on SCHEDULE 8.3 (as
supplemented and modified in writing from time to time to reflect any
changes to such Schedule as a result of transactions permitted by the
Loan Documents), free and clear of any Liens, restrictions, claims,
or Rights of another Person, OTHER THAN Permitted Liens, and none of
such shares owned by any Company is subject to any restriction on
transfer thereof EXCEPT for restrictions imposed by securities Laws
and general corporate Laws. No Company has outstanding any warrant,
option, or other Right of any Person to acquire any of its capital
stock or similar equity interests. No Company has any Subsidiaries
that are Foreign Subsidiaries.
AUTHORIZATION AND CONTRAVENTION. The
execution and delivery by each Company of each Loan Document to which
it is a party and the performance by such Company of its obligations
thereunder (a) are within the corporate, partnership, or limited
liability company power of such Company, (b) will have been duly
authorized by all necessary corporate, partnership, or limited
liability company action on the part of such Company when such Loan
Document is executed and delivered, (c) require no action by or in
respect of, or filing with, any Governmental Authority, which action or
filing has not been taken or made on or prior to the Closing Date (or
if later, the date of execution and delivery of such Loan Document),
(d) will not violate any provision of the charter, bylaws, limited
liability company agreement, partnership agreement, or other
organizational documents of such Company, (e) will not violate any
provision of Law applicable to such Company, OTHER THAN such violations
which individually or collectively could not reasonably be expected to
be a Material Adverse Event, (f) will not violate any Material
Agreements, OTHER THAN such violations which could not reasonably be
expected to be a Material Adverse Event, or (g) will not result in the
creation or imposition of any Lien on any asset of any Company, OTHER
THAN as expressly permitted by the Loan Documents. Each Company has (or
will have upon consummation thereof) all necessary consents and
approvals of any Person or Governmental Authority required to be
obtained in order to effect the American Merger and any other asset
transfer, change of control, merger, or consolidation permitted by the
Loan Documents, EXCEPT where the failure to obtain such consents or
approvals could not, individually or collectively, reasonably be
expected to be a Material Adverse Event.
BINDING EFFECT. Upon execution and delivery
by all parties thereto, each Loan Document will constitute a legal,
valid, and binding obligation of each Company party thereto,
enforceable against each such Company in accordance with its terms,
EXCEPT as enforceability may be limited by applicable Debtor Relief
Laws and general principles of equity.
FINANCIAL STATEMENTS. The Current Financials
were prepared in accordance with GAAP and present fairly, in all
material respects, the consolidated financial condition, results of
operations, and cash flows of the entities covered thereby ("REPORTING
ENTITIES") as of and for the portion of the fiscal year ending on the
date or dates thereof (subject only to normal year-end audit
adjustments for interim statements). There were no material
liabilities, direct or indirect, fixed or contingent, of the Reporting
Entities as of the date or dates of the Current Financials which are
required under GAAP to be reflected therein or in the notes thereto and
are not so reflected. EXCEPT for transactions directly related to or
expressly permitted by the Loan Documents, (a) there have been no
changes in the consolidated financial condition or operations of the
Reporting Entities from that shown in the Current Financials after such
date which could reasonably be expected to be a Material Adverse Event,
nor has any Reporting Entity incurred any liability (including, without
limitation, any liability under any Environmental Law), direct or
indirect, fixed or contingent, after such date which could reasonably
be expected to be a
Material Adverse Event, and (b) no Reporting Entity has incurred any
liability (including, without limitation, any liability under any
Environmental Law), direct or indirect, fixed or contingent, after
such date which could reasonably be expected to be a Material Adverse
Event.
LITIGATION, CLAIMS, INVESTIGATIONS. No
Company is subject to, or aware of the threat of, any Litigation which
is reasonably likely to be determined adversely to any Company, and, if
so adversely determined, could (individually or collectively with other
Litigation) reasonably be expected to be a Material Adverse Event.
There are no outstanding orders or judgments for the payment of money
in excess of $5,000,000 (individually or collectively) or any warrant
of attachment, sequestration, or similar proceeding against the assets
of any Company having a value (individually or collectively) of
$5,000,000 or more which is not EITHER (a) stayed on appeal or (b)
being diligently contested in good faith by appropriate proceedings and
adequate reserves have been set aside on the books of the Companies in
accordance with GAAP. There are no formal complaints, suits, claims,
investigations, or proceedings initiated at or by any Governmental
Authority pending or threatened by or against any Company relating to
the American Merger, the transactions evidenced by the Loan Documents,
or which could reasonably be expected to be a Material Adverse Event,
nor any judgments, decrees, or orders of any Governmental Authority
outstanding against any Company that could reasonably be expected to be
a Material Adverse Event.
TAXES. All Tax returns of each Company
required to be filed have been filed (or extensions have been granted)
prior to delinquency, EXCEPT for any such returns for which the failure
to so file could not reasonably be expected to be a Material Adverse
Event, and all Taxes imposed upon each Company which are due and
payable have been paid prior to delinquency, OTHER THAN Taxes for which
the criteria for Permitted Liens (as specified in SECTION 9.13(b)(vi))
have been satisfied or for which nonpayment thereof could not
reasonably be expected to be a Material Adverse Event.
ENVIRONMENTAL MATTERS. No Company (a) knows
of any environmental condition or circumstance, such as the presence or
Release of any Hazardous Substance, on any property presently or
previously owned by any Company that could reasonably be expected to be
a Material Adverse Event, (b) knows of any violation by any Company of
any Environmental Law, EXCEPT for such violations that could not
reasonably be expected to be a Material Adverse Event, or (c) knows
that any Company is under any obligation to remedy any violation of any
Environmental Law, EXCEPT for such obligations that could not
reasonably be expected to be a Material Adverse Event; PROVIDED,
HOWEVER, that each Company (x) to the best of its knowledge, has in
full force and effect all Environmental Permits, licenses, and
approvals required to conduct its operations and is operating in
substantial compliance thereunder, and (y) has taken prudent steps to
determine that its properties and operations are not in violation of
any Environmental Law.
EMPLOYEE BENEFIT PLANS. No Company or any
ERISA Affiliate has maintained or will maintain any Employee Plans. No
Company or any ERISA Affiliate has engaged in any "PROHIBITED
TRANSACTION" (as defined in SECTION 406 of ERISA or SECTION 4975 of the
Code) which could reasonably be expected to be a Material Adverse
Event.
PROPERTIES; LIENS. Each Company has good and
marketable title to all its property reflected on the Current
Financials, EXCEPT (a) for (i) property that is obsolete, (ii) property
that has been disposed of in the ordinary course of business, or (iii)
property with title defects or failures in title which, when considered
in the aggregate, could not reasonably be expected to be a Material
Adverse Event, or (b) as otherwise permitted by the Loan Documents.
Except for Permitted Liens, there is no Lien on any property of any
Company, and the execution, delivery, performance, or observance of the
Loan Documents will not require or result in the creation of any Lien
on such property.
GOVERNMENT REGULATIONS. No Company is
subject to regulation under the INVESTMENT COMPANY ACT OF 1940, as
amended, the PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, as amended, or
any other Law (OTHER THAN REGULATIONS T, U, and X of the Board of
Governors of the Federal Reserve System and the requirements of any PUC
or public service commission) which regulates the incurrence of Debt.
TRANSACTIONS WITH AFFILIATES. EXCEPT as
permitted in SECTION 9.14, no Company is a party to a material
transaction with any of its Affiliates (excluding transactions between
or among Companies), OTHER THAN transactions in the ordinary course of
business and upon fair and reasonable terms not materially less
favorable than such Company could obtain or could become entitled to in
an arm's-length transaction with a Person that was not its Affiliate.
DEBT. No Company is an obligor on any Debt
OTHER THAN Permitted Debt.
MATERIAL AGREEMENTS; MANAGEMENT AGREEMENTS.
SCHEDULE 8.15 sets forth a list of all Material Agreements of the
Companies (including with respect to the Systems), and there exists no
material default under any of such contracts. There are no failures of
the LLC Agreement, the Management Agreement, and the Roaming Agreements
to be in full force and effect, and no default or potential default
exists thereunder. There are no failures of any other Material
Agreements to be in full force and effect which could reasonably be
expected to be a Material Adverse Event, and no default or potential
default exists on the part of any Company party thereunder which could
reasonably be expected to be a Material Adverse Event. No Company is a
party to any management or consulting agreement for the provision of
services to it, EXCEPT as described in SCHEDULE 8.15.
INSURANCE. Each Company maintains, with
financially sound, responsible, and reputable insurance companies or
associations, insurance concerning its properties and businesses
against such casualties and contingencies and of such types and in such
amounts (and with co-insurance and deductibles) as is customary in the
case of same or similar businesses.
LABOR MATTERS. There are no actual or
threatened strikes, labor disputes, slow downs, walkouts, or other
concerted interruptions of operations by the employees of any Company
that could reasonably be expected to be a Material Adverse Event. Hours
worked by and payment made to employees of the Companies have not been
in violation of the FAIR LABOR STANDARDS ACT or any other applicable
Law dealing with such matters, OTHER THAN any such violations,
individually or collectively, which could not reasonably be expected to
be a Material Adverse Event. All payments due from any Company on
account of employee health and welfare insurance have been paid or
accrued as a liability on its books, OTHER THAN any such nonpayments
which could not, individually or collectively, reasonably be expected
to be a Material Adverse Event.
SOLVENCY. At the time of each Borrowing
hereunder, and on the dates of the American Merger, each other
Permitted Acquisition, and each Intercompany Acquisition, each Company
is (and after giving effect to the transactions contemplated by the
Loan Documents, the American Merger, any other Permitted Acquisition,
any Intercompany Acquisition, and any incurrence of additional Debt,
will be) Solvent.
INTELLECTUAL PROPERTY. Each Company owns or
has sufficient and legally enforceable Rights to use all material
licenses, patents, patent applications, copyrights, service marks,
trademarks, trademark applications, and trade names necessary to
continue to conduct its businesses as heretofore conducted by it, now
conducted by it, and now proposed to be conducted by it. Each Company
is conducting its business without infringement or claim of
infringement of any license, patent, copyright, service ▇▇▇▇,
trademark, trade name, trade secret, or other intellectual property
Right of others, OTHER THAN any such infringements or claims which, if
successfully asserted against or determined adversely to any Company,
could not, individually or collectively, reasonably be expected to be a
Material Adverse Event.
COMPLIANCE WITH LAWS. No Company is in
violation of any Laws (including, without limitation, the
Communications Act, Environmental Laws, and those Laws administered by
the FCC and any PUC), OTHER THAN such violations which could not,
individually or collectively, reasonably be expected to be a Material
Adverse Event. No Company has received notice alleging any
noncompliance with any Laws, EXCEPT for such noncompliance which no
longer exists, or which could not reasonably be expected to be a
Material Adverse Event.
PERMITTED ACQUISITIONS; INTERCOMPANY
ACQUISITIONS.
VALIDITY. With respect to any Permitted Acquisition or
Intercompany Acquisition, each Company has the power and authority
under the Laws of its state of incorporation or organization and under
its charter, bylaws, limited liability company agreement, partnership
agreement, or other organizational documents, as applicable, to enter
into and perform the related acquisition or asset swap agreement to
which it is a party and all other agreements, documents, and actions
required thereunder; and all actions (corporate or otherwise) necessary
or appropriate by the Companies for the execution and performance of
said acquisition or asset swap agreements, and all other documents,
agreements, and actions required thereunder, have been taken, and, upon
their execution, such acquisition or asset swap agreements will
constitute the valid and binding obligation of the Companies party
thereto, enforceable in accordance with their respective terms.
NO VIOLATIONS. With respect to any Permitted Acquisition or
Intercompany Acquisition, the making and performance of the related
acquisition or asset swap agreements, and all other agreements,
documents, and actions required thereunder, will not violate any
provision of any Law, including, without limitation, all state
corporate Laws and judicial precedents of the states of incorporation
or formation of the Companies, and will not violate any provisions of
the charter, bylaws, limited liability company agreement, partnership
agreement, or other organizational documents of the Companies, or
constitute a default under any agreement by which the Companies or
their respective property may be bound, EXCEPT where such violation
could not reasonably be expected to be a Material Adverse Event,.
AUTHORIZATIONS. With respect to any Permitted Acquisition or
Intercompany Acquisition, no Authorization, waiver, or formal
exemptions from, nor any filing, declaration, or registration with, any
Governmental Authority (federal, state, or local), non-governmental
entity, or other Person under the terms of contracts or otherwise, is
required by reason of or in connection with the execution and
performance of the acquisition or asset swap agreement related to such
Permitted Acquisition or Intercompany Acquisition or the consummation
of such Permitted Acquisition or Intercompany Acquisition, OTHER THAN
as will be obtained on or prior to, or will become effective
concurrently with, the closing date of such Permitted Acquisition or
Intercompany Acquisition EXCEPT where the failure to do so could not
reasonably be expected to be a Material Adverse Event.
REGULATION U. "MARGIN STOCK" (as defined in
REGULATION U) constitutes less than 25% of those assets of any Company
which are subject to any limitation on sale, pledge, or other
restrictions hereunder.
TRADENAMES. Except as set forth on SCHEDULE
8.23, no Company has (a) used or transacted business under any other
corporate name in the five-year period preceding the Closing Date or
(b) exclusively used or transacted business in any jurisdiction under
any tradename in the five-year period preceding the Closing Date.
YEAR 2000. Except where such malfunction
could not reasonably be expected to be a Material Adverse Event, all of
the material computer software, computer firmware, computer hardware
(whether general or special purpose), and other similar or related
items of automated, computerized, and/or software systems that are used
or relied on by the Companies in the conduct of their respective
businesses have not malfunctioned, have not ceased to function and have
not produced incorrect results when processing, providing, and/or
receiving (a) date-related data into, between, and during year 1999 and
year 2000, and (b) date-related data in connection with any valid date
in year 1999 and year 2000. The Companies have developed and
implemented to the extent required a year 2000 contingency and business
continuity plan.
FULL DISCLOSURE. There is no material fact
or condition relating to the Loan Documents or the financial condition,
business, or property of any Company (or, with respect to events prior
to the Closing Date, Parent, American, ACC Acquisition Co., and their
respective Subsidiaries) which could reasonably be expected to be a
Material Adverse Event and which has not been related, in writing, to
Administrative Agent. All information heretofore furnished by any
Company to any Lender or Administrative Agent in connection with the
Loan Documents was, and all such information hereafter furnished by any
Company to any Lender or Administrative Agent will be, true and
accurate in all material respects or based on reasonable estimates on
the date as of which such information is stated or certified.
NO DEFAULT. No Default or Potential Default
exists or will arise as a result of the execution delivery, and
performance of the Loan Documents, of any Borrowing hereunder, or the
consummation of the American Merger.
PERFECTION OF SECURITY INTERESTS. Upon
filing of the financing statements (and payment of requisite filing
fees) against each Company in the jurisdictions indicated for such
Company on ANNEX A of the Security Agreement and the delivery to
Administrative Agent, for the benefit of Lenders, of all stock
certificates, membership certificates, or other evidence of equity
investments owned by any Company required to be pledged to secure the
Obligation pursuant to SECTIONS 6.2 and 6.3, the security interests in
the Collateral created by the Collateral Documents (which may be
perfected under applicable Law by the filing of financing statements or
the possession of collateral) will be perfected in favor of
Administrative Agent, for the benefit of Lenders. No further action,
including any filing or recording of any document, is necessary in
order to establish, perfect, and maintain Lenders' first priority
security interests in the assets and the stock created by the
Collateral Documents (which may be perfected under applicable Law by
the filing of financing statements or the possession of collateral),
EXCEPT for the periodic filing of continuation statements (and payment
of requisite filing fees) with respect to financing statements filed
under the UCC.
THE AMERICAN MERGER. The American Merger
Agreement has been executed and delivered by all parties thereto and
represents the valid and binding agreement of the parties thereto,
enforceable in all material respects in accordance with its terms
(EXCEPT as enforceability may be limited by applicable Debtor Relief
Laws and general principles of equity). On and as of the Closing Date,
the execution and delivery by each Company party thereto (or its
predecessors in interest) of the American Merger Documents and the
performance of their respective obligations thereunder (a) are within
the corporate or organizational power of such Company (or its
predecessors in interest), (b) have been duly authorized by all
necessary corporate, partnership, or limited liability company action
on the part of such Company (or its predecessors in interest), (c)
require no action by or in respect of, or filing with any Governmental
Authority, which action or filing has not been taken or made on or
prior to the Closing Date, (d) do not violate any provision of the
charter, bylaws, limited liability company agreement, partnership
agreement, or other organizational documents of such Company (or its
predecessors in interest), (e) do not violate any provision of Law
applicable to it, OTHER THAN such violations which, individually or
collectively, could not reasonably expected to be a Material Adverse
Event, (f) do not violate any Material Agreements to which it is (or
its predecessors in interest are) a party, OTHER THAN such violations
which could not reasonably be expected to be a Material Adverse Event,
(g) do not result in the creation or imposition of any Lien on any
asset of any Company or their predecessors in interest (OTHER THAN
Permitted Liens), and (h) immediately prior to, and after giving pro
forma effect thereto, no Default or Potential Default exists or arises
under the Loan Documents. On and as of the Closing Date, the Companies
(or their predecessors in interest) have obtained all necessary
consents and approvals of any Person or Governmental Authority required
to be obtained in order for such Companies to effectuate the American
Merger and the transactions contemplated by the American Merger
Agreement, EXCEPT to the extent any such failure could not reasonably
be expected to be a Material Adverse Event and could not reasonably be
expected to materially impair the value to the Companies of, or the
benefits to be derived by the Companies or their predecessors in
interest from, the American Merger. On the Closing Date, all conditions
precedent under the American Merger Agreement, to the parties'
obligations to consummate such American Merger have been satisfied in
all material respects, and concurrently with the Closing Date, the
American Merger shall have been consummated.
SECTION COVENANTS. Each Company covenants and
agrees (and agrees to cause its ERISA Affiliates with respect to SECTION 9.10)
to perform, observe, and comply with each of the following covenants
applicable to such Person, from the Closing Date and SO LONG THEREAFTER AS
Lenders are committed to fund Borrowings (and Administrative Agent is
committed to issue LCs) under this Agreement and thereafter until the payment
in full of the Principal Debt (and termination of outstanding LCs and
Financial ▇▇▇▇▇▇, if any) and payment in full of all other interest, fees, and
other amounts of the Obligation then due and owing, UNLESS Borrower receives a
prior written consent to the contrary by Administrative Agent as authorized by
Required Lenders:
USE OF PROCEEDS. Borrower shall use (or
shall cause its Subsidiaries to use) the proceeds of Borrowings only
for the purposes represented herein.
BOOKS AND RECORDS. The Companies shall
maintain books, records, and accounts necessary to prepare financial
statements in accordance with GAAP.
ITEMS TO BE FURNISHED. Borrower and Parent
shall cause the following to be furnished to Administrative Agent for
delivery to Lenders:
Promptly after preparation, and no later than 120
days after the last day of each fiscal year of Parent, Financial
Statements showing the consolidated financial condition and results of
operations calculated for the Companies as of, and for the year ended
on, such day, accompanied by:
16) The unqualified opinion of a firm of
nationally-recognized independent certified public
accountants, based on an audit using generally accepted
auditing standards, that such Financial Statements
(calculated with respect to the Companies) were prepared in
accordance with GAAP and present fairly the consolidated
financial condition and results of operations of the
Companies;
17) A certificate from such accounting firm
addressed to Administrative Agent indicating that during its
audit it obtained no knowledge of any Default or Potential
Default or, if it obtained such knowledge, the nature and
period of existence thereof; and
Promptly after preparation, and no later than 60 days
after the last day of each fiscal quarter of Parent, Financial
Statements showing the consolidated financial condition and results of
operations calculated for the Companies for such fiscal quarter and for
the period from the beginning of the then-current fiscal year to, such
last day, accompanied by a Compliance Certificate with respect to the
Financial Statements of the Companies.
Within 60 days after the end of each fiscal quarter
of Parent, a management report, showing for each System (or group of
Systems if such Systems are managed as a group and are geographically
contiguous or substantially contiguous) results of operations and
subscriber counts, discussing the financial results and comparing
actual performance results to the Budget for such period, and outlining
principal factors affecting performances of each market (all items to
be delivered under this CLAUSE (c) shall be in form and substance
satisfactory to Administrative Agent).
On or prior to March 31 of each fiscal year of
Parent, the financial Budget for such fiscal year, accompanied by a
certificate executed by a Responsible Officer of Parent and a
Responsible Officer of Borrower, certifying that such Budget was
prepared by the Companies based on assumptions which, in light of the
historical performance of the Companies and their prospects for the
future, are reasonable.
Promptly upon receipt thereof, copies of all
auditor's annual management letters delivered to any Company.
Notice, promptly after any Company knows or has
reason to know of (i) the existence and status of any Litigation which
could reasonably be expected to be a Material Adverse Event, or of any
order or judgment for the payment of money which (individually or
collectively) is in excess of $5,000,000, or any warrant of attachment,
sequestration, or similar proceeding against the assets of any Company
having a value (individually or collectively) of $5,000,000, (ii) any
material change in any material fact or circumstance represented or
warranted in any Loan Document, (iii) a Default or Potential Default
specifying the nature thereof and what action any Company has taken, is
taking, or proposes to take with respect thereto, (iv) the receipt by
any Company of any notice from any Governmental Authority of the
expiration without renewal, termination, material modification or
suspension of, or institution of any proceedings to terminate,
materially modify, or suspend, any Authorization granted by the FCC or
any applicable PUC, or any other Authorization which any Company is
required to hold in order to operate its business in compliance with
all applicable Laws, OTHER THAN such expirations, terminations,
suspensions, or modifications which, individually or in the aggregate,
could not reasonably be expected to be a Material Adverse Event, (v)
any federal, state, or local Law limiting or controlling the operations
of any Company which has been issued or adopted hereafter and which
could reasonably be expected to be a Material Adverse Event, (vi) the
receipt by any Company of notice of any violation or alleged violation
of any Environmental
Law or Environmental Permit or any Environmental Liability or
potential Environmental Liability, which violation or liability or
alleged violation or liability could, individually or collectively
with other such violations or allegations, reasonably be expected to
be a Material Adverse Event, or (vii) (A) any expressed statement in
writing on the part of the PBGC of any "PROHIBITED TRANSACTION," or
(B) the creation of, maintenance of, or acquisition of any Employee
Plan by any Company or any ERISA Affiliate.
Promptly after any of the information or disclosures
provided on any of the Schedules delivered pursuant to this Agreement
or any Annexes to any of the Collateral Documents becomes outdated or
incorrect in any material respect, such revised or updated Schedule(s)
or Annexes as may be necessary or appropriate to update or correct such
information or disclosures; PROVIDED THAT, no deletions may be made to
any Annexes describing Collateral in any of the Collateral Documents
UNLESS such asset disposition is expressly permitted by the Loan
Documents or is approved by Required Lenders.
Promptly after preparation, true, correct, and
complete copies of all material reports or filings filed by or on
behalf of any Company with any Governmental Authority (including the
FCC and the Securities and Exchange Commission).
Promptly after the filing thereof, a true, correct,
and complete copy of each FORM 10-K, FORM 10-Q, and FORM 8-K filed by
or on behalf of any Company with the Securities and Exchange
Commission.
Promptly upon request therefor by Administrative
Agent or Lenders, such information (not otherwise required to be
furnished under the Loan Documents) respecting the business affairs,
assets, and liabilities of the Companies, and such opinions,
certifications, and documents, in addition to those mentioned in this
Agreement, as reasonably requested.
With respect to the post-closing requirements set
forth on SCHEDULE 7.1A, deliver, or cause to be delivered, to
Administrative Agent, all agreements, documents, instruments, or other
items listed on SCHEDULE 7.1A on or prior to the date specified for
delivery thereof on SCHEDULE 7.1A.
INSPECTIONS. Subject to the confidentiality
provisions of SECTION 13.14, upon reasonable notice, each Company shall
allow Administrative Agent or any Lender (or their respective
Representatives) to inspect its properties, to review reports, files,
and other records and to make and take away copies thereof, to conduct
tests or investigations, and to discuss any of its affairs, conditions,
and finances with other creditors, directors, officers, employees,
other representatives, and independent accountants of such Company,
from time to time, during reasonable business hours.
TAXES. Each Company shall (and shall cause
each of its Subsidiaries to) (a) promptly pay when due any and all
Taxes OTHER THAN Taxes the applicability, amount, or validity of which
is being contested in good faith by lawful proceedings diligently
conducted, and against which reserve or other provision required by
GAAP has been made, and in respect of which levy and execution of any
Lien securing same have been and continue to be stayed, (b) not,
directly or indirectly, use any portion of the proceeds of any
Borrowing to pay the wages of employees UNLESS a timely payment to or
deposit with the appropriate Governmental Authorities of all amounts of
Tax required to be deducted and withheld with respect to such wages is
also made, and (c) notify Administrative Agent immediately if the
Internal Revenue Service or any other taxing authority commences or
notifies any Company of its intention to commence an audit
or investigation with respect to any Taxes of any kind due or alleged
to be due from any Company.
PAYMENT OF OBLIGATIONS. Borrower shall pay
the Obligation in accordance with the terms and provisions of the Loan
Documents. Each Company (a) shall promptly pay (or renew and extend)
all of its material obligations as the same become due (UNLESS such
obligations [OTHER THAN the redemption of the Existing Senior Notes on
the Closing Date and prepayment of the Obligation from time to time]
are being contested in good faith by appropriate proceedings), and (b)
shall not (i) make any voluntary payment or prepayment of principal of,
or interest on, any other Debt (OTHER THAN the Obligation or Debt
between Companies), whether subordinate to the Obligation or not or
(ii) use proceeds from the Facilities to make any payment or voluntary
prepayment of principal of, or interest on, or sinking fund payment in
respect of any Debt of any Company, EXCEPT as permitted in SECTION
9.20. No Company shall make any payment on any Subordinated Debt when
it violates the subordination provisions thereof or results in a
Default or Potential Default hereunder.
MAINTENANCE OF EXISTENCE, ASSETS, AND
BUSINESS. Except as otherwise permitted by SECTION 9.25, each Company
shall (and shall cause each of its Subsidiaries to) at all times: (a)
maintain its existence and good standing in the jurisdiction of its
organization and its authority to transact business in all other
jurisdictions where the failure to so maintain its authority to
transact business could reasonably be expected to be a Material Adverse
Event; (b) maintain all licenses, permits, and franchises necessary for
its business where the failure to so maintain could reasonably be
expected to be a Material Adverse Event; (c) keep all of its assets
which are useful in and necessary to its business in good working order
and condition (ordinary wear and tear excepted) and make all necessary
repairs thereto and replacements thereof; and (d) do all things
necessary to obtain, renew, extend, and continue in effect all
Authorizations issued by the FCC or any applicable PUC which may at any
time and from time to time be necessary for the Companies to operate
their businesses in compliance with applicable Law, where the failure
to so renew, extend, or continue in effect could reasonably be expected
to be a Material Adverse Event.
INSURANCE. Each Company (or Parent on behalf
of and for the benefit of, such Companies) shall, at its sole cost and
expense, keep and maintain all property and assets owned by such
Company insured for its actual cash value against loss or damage by
fire, theft, explosion, flood, and all other hazards and risks
ordinarily insured against by other owners or users of such properties
in similar businesses of comparable size and notify Administrative
Agent promptly of any occurrence causing a material loss or decline in
value of such property or assets, and the estimated (or actual, if
available) amount of such loss or decline. All such policies of
insurance shall be in a form, with such deductibles, and with insurers
recognized as adequate by prudent business Persons in the same
businesses as the Companies and acceptable to Administrative Agent, and
all such policies shall be in such amount as may be satisfactory to
Administrative Agent. On the Closing Date and thereafter as each policy
is renewed and extended, the Companies shall deliver to Administrative
Agent a certificate of insurance for each policy of insurance and
evidence of payment of all premiums therefor. Such policies of
insurance and the certificates evidencing the same shall contain an
endorsement, in form and substance acceptable to Administrative Agent,
showing loss payable to Administrative Agent (for the ratable benefit
of Lenders) as its interests may appear under a standard lienholder
clause. Such endorsement, or an independent instrument furnished to
Administrative Agent, shall provide that the insurance companies will
give Administrative Agent at least 30 days prior written notice before
any such policy or policies of insurance shall be altered or canceled
and that no act or default of any Company or any other Person (OTHER
THAN non-payment of premiums) shall affect
the Right of Administrative Agent to recover under such policy or
policies of insurance in case of loss or damage. Upon the payment by
the insurer of the proceeds of any such policy of insurance and if no
Default has occurred and is continuing, the Company so insured may
retain such insurance if such proceeds are used to repair or replace
the property the damage or destruction of which gave rise to the
payment of such insurance proceeds or to acquire Cellular Assets (in
each case within 12 months of the receipt of such insurance proceeds)
of equal or greater value; PROVIDED, HOWEVER, that any insurance
proceeds not used for repair or replacement or the acquisition of
Cellular Assets in accordance herewith, UNLESS paid as reimbursement
of expenses incurred and business losses suffered in connection with
the loss or damage to the Collateral, shall be paid to or retained by
Administrative Agent for application as a mandatory prepayment on the
Obligation. Notwithstanding the foregoing, no acquisition of Cellular
Assets or mandatory prepayment shall be required UNLESS the amount of
insurance proceeds received in any calendar year under all policies
of insurance of the Companies exceeds $1,000,000. Any mandatory
prepayment hereunder shall be applied as follows: (i) FIRST, subject
to the provisions of SECTION 3.3(f), ratably as a prepayment of the
Obligation arising under the Term Loan A Facility, the Term Loan B
Facility, and the Term C Loan Facility until paid in full (for
purposes hereof, "RATABLY" for each Facility, on any date of
determination, shall mean the proportion that EITHER the Term Loan A
Principal Debt, the Term Loan B Principal Debt, or the Term Loan C
Principal Debt, as the case may be, bears to the Term Principal
Debt); and (ii) SECOND, as a mandatory reduction of the Revolver
Commitment.
PRESERVATION AND PROTECTION OF RIGHTS. Each
Company shall (and shall cause each Subsidiary thereof to) perform such
acts and duly authorize, execute, acknowledge, deliver, file, and
record any additional agreements, documents, instruments, and
certificates as Administrative Agent or Required Lenders may reasonably
deem necessary or appropriate in order to preserve and protect the
Rights of Administrative Agent and Lenders under any Loan Document.
EMPLOYEE BENEFIT PLANS. No Company or ERISA
Affiliate shall, directly or indirectly, engage in any "PROHIBITED
TRANSACTION" (as defined in SECTION 406 of ERISA or SECTION 4975 of the
Code), or (without notice to Administrative Agent and execution of
appropriate amendments to the Loan Documents) maintain, create, or
participate in any Employee Plan.
ENVIRONMENTAL LAWS. Each Company shall (a)
conduct its business so as to comply in all material respects with all
applicable Environmental Laws and shall promptly take corrective action
to remedy any non-compliance with any Environmental Law, (b) promptly
investigate and remediate any known Release or threatened Release of
any Hazardous Substance on any property owned by any Company or at any
facility operated by any Company to the extent and degree necessary to
comply with Law and to assure that any Release or threatened Release
does not result in a substantial endangerment to human health or the
environment, and (c) appropriately monitor compliance with applicable
Environmental Laws and minimize financial and other risks to each
Company arising under applicable Environmental Laws or as a result of
environmentally-related injuries to Persons or property.
DEBT AND GUARANTIES. No Company shall
directly or indirectly, create, incur, or suffer to exist any direct,
indirect, fixed, or contingent liability for any Debt, OTHER THAN:
The Obligation and Guaranties thereof;
Debt incurred by any Company under any Financial
Hedge permitted by, and purchased and maintained in compliance with,
the requirements of the Loan Documents;
Debt between Companies;
Trade Debt for goods furnished or services rendered
in the ordinary course of business and payable in accordance with
customary trade terms that are not more than 90 days past due;
Endorsements of checks or drafts in the ordinary
course of business;
Debt of the Companies existing on the Closing Date
and listed on SCHEDULE 9.12 not to exceed $15,000,000, TOGETHER WITH
all renewals, extensions, amendments, modifications, and refinancings
thereof, SO LONG AS (x) the principal amount of any refinanced Debt
shall not exceed the principal amount of the Debt being refinanced
immediately prior to giving effect to any such refinancing ; and (y) no
Default or Potential Default exists or arises as a result of any such
renewal, extension, amendment, modification, or refinancing
(collectively, the "EXISTING DEBT");
Debt incurred or assumed by any Company for the
purpose of financing all or any part of the cost of any asset
(including Capital Leases and renewals, extensions, amendments, and
modifications of such Debt), SO LONG AS (i) the aggregate amount of
such Debt (TOGETHER WITH any and all amendments, modifications, or
refinancings thereof) does not exceed $75,000,000, and (ii) no Default
or Potential Default then exists or arises as a result of such Debt
incurrence; and
Unsecured Debt of any Company not otherwise permitted
by this SECTION 9.12 and unsecured Guaranties thereof, SO LONG AS on
any date of determination such Debt does not exceed, in the aggregate,
the DIFFERENCE between (i) $15,000,000 and (ii) the outstanding
principal amount of the Existing Debt.
LIENS. No Company will, directly or
indirectly, (a) enter into or permit to exist any arrangement or
agreement which directly or indirectly prohibits any Company from
creating or incurring any Lien on any of its assets, OTHER THAN the
Loan Documents, or (b) create, incur, or suffer or permit to be created
or incurred or to exist any Lien upon any of its assets, EXCEPT:
18) Liens securing the Obligation, and SO
LONG AS the Obligation is ratably secured therewith, Liens
securing Debt incurred by any Company under any Financial
Hedge with any Lender or an Affiliate of any Lender to the
extent permitted under SECTION 9.12(b);
19) Pledges or deposits made to secure
payment of worker's compensation, or to participate in any
fund in connection with worker's compensation, unemployment
insurance, pensions, or other social security programs, but
expressly excluding any Liens in favor of the PBGC or
otherwise under ERISA;
20) Good-faith pledges or deposits made to
secure performance of bids, tenders, insurance or other
contracts (OTHER THAN for the repayment of borrowed money),
or leases, or to secure statutory obligations, surety or
appeal bonds, or indemnity, performance, or other similar
bonds as all such Liens arise in the ordinary course of
business;
21) Encumbrances consisting of zoning
restrictions, easements, or other restrictions on the use of
real property, none of which impair in any material respect
the use of such property by the Person in question in the
operation of its business, and none of which is violated by
existing or proposed structures or land use;
22) Liens of landlords or of mortgagees of
landlords, arising solely by operation of law, on fixtures and
movable property located on premises leased in the ordinary
course of business;
23) The following, SO LONG AS the validity or
amount thereof is being contested in good faith and by
appropriate and lawful proceedings diligently conducted,
reserve or other appropriate provisions (if any) required by
GAAP shall have been made, levy and execution thereon have
been stayed and continue to be stayed, and they do not in
the aggregate materially detract from the value of the
property of the Person in question, or materially impair the
use thereof in the operation of its business: (i) claims and
Liens for Taxes (OTHER THAN Liens relating to Environmental
Laws or ERISA); (ii) claims and Liens upon, and defects of
title to, real or personal property, including any
attachment of personal or real property or other legal
process prior to adjudication of a dispute of the merits;
and (iii) claims and Liens of mechanics, materialmen,
warehousemen, carriers, landlords, or other like Liens;
24) Liens securing Permitted Debt incurred
pursuant to SECTION 9.12(g), SO LONG AS (A) any such Lien
does not extend to any asset OTHER THAN the asset purchased
or financed by such Debt, and (B) any such Lien attached to
such asset concurrently with or within 180 days of the
related asset acquisition;
25) Liens existing on the Closing Date and
listed on SCHEDULE 9.13, SO LONG AS the Debt secured by all
Liens set forth on SCHEDULE 9.13 does not exceed $5,000,000;
and
26) Liens to secure outstanding judgments for
the payment of money, SO LONG AS (A) the amount of such
judgments do not exceed $5,000,000 (individually or
collectively) or (B) for any judgments other than those
described in CLAUSE (a), any such Liens does not secure such
judgment for more than 60 days immediately following the
entry of any such judgment.
TRANSACTIONS WITH AFFILIATES. No
Company shall (a) enter into any material transaction with
any of its Affiliates (excluding transactions among or
between Companies), OTHER THAN transactions in the ordinary
course of business and upon fair and reasonable terms not
materially less favorable than such Company could obtain or
could become entitled to in an arm's-length transaction with
a Person that was not its Affiliate, or (b) pay any salaries
or other compensation, consulting fees, or management fees
or other like payments to any of its Affiliates, OTHER THAN
in the ordinary course of business for services rendered
without any profit or margin with respect thereto.
COMPLIANCE WITH LAWS AND DOCUMENTS.
No Company shall violate the provisions of any Laws applicable
to it, including, without limitation, Environmental Laws,
Environmental Permits, ERISA, OSHA, and all rules and
regulations promulgated by the FCC or any applicable PUC, or
any Material Agreement if such violation alone, or when
aggregated with all other such violations, could reasonably be
expected to be a Material Adverse Event; no Company shall
violate the
provisions of its charter, bylaws, limited liability company
agreement, partnership agreement, or other organizational
documents.
PERMITTED ACQUISITIONS, SUBSIDIARY
GUARANTIES, AND COLLATERAL DOCUMENTS. In connection with each
Permitted Acquisition, Borrower shall deliver, or cause to be
delivered to, Administrative Agent each of the items described
on SCHEDULE 7.2, on or before the date specified on such
Schedule for each such item. Borrower shall cause each entity
that becomes a direct or indirect Subsidiary of Parent after
the Closing Date (whether as a result of a Permitted
Acquisition, Intercompany Acquisition, merger, creation, or
otherwise) to: (a) execute a Guaranty on the date such entity
becomes a direct or indirect Subsidiary of Parent and promptly
deliver (but in no event later than ten days following
consummation of such creation, Permitted Acquisition,
Intercompany Acquisition, or merger) such Guaranty to
Administrative Agent and (b) execute and deliver to
Administrative Agent all required Collateral Documents (in
form and substance acceptable to Administrative Agents)
creating Liens in favor of Administrative Agent on all the
assets of such Company.
ASSIGNMENT. EXCEPT as expressly
permitted in this Agreement, no Company shall assign or
transfer any of its Rights, duties, or obligations under any
of the Loan Documents.
FISCAL YEAR AND ACCOUNTING METHODS.
No Company will change its fiscal year for book accounting
purposes or its method of accounting, OTHER THAN (a)
immaterial changes in methods or as required by GAAP, or (b)
in connection with a Permitted Acquisition, such changes to
the newly-acquired entity so as to conform its fiscal year and
its method of accounting to those of the Companies.
GOVERNMENT REGULATIONS. No Company
will conduct its business in such a way that it will become
subject to regulation under the INVESTMENT COMPANY ACT OF
1940, as amended, the PUBLIC UTILITY HOLDING COMPANY ACT OF
1935, as amended, or any other Law (OTHER THAN Regulations T,
U, and X of the Board of Governors of the Federal Reserve
System and the requirements of any PUC or public service
commission) which regulates the incurrence of Debt.
LOANS, ADVANCES, AND INVESTMENTS. No
Company shall, directly or indirectly, acquire any
Authorizations to own and operate PCS Systems or Cellular
Systems, make any loan, advance, extension of credit, or
capital contribution to, make any investment in, or purchase
or commit to purchase any stock or other securities or
evidences of Debt of, or interests in, or any assets
constituting an ongoing business of, any other Person, OTHER
THAN:
Investments by Borrower or its Subsidiaries in Cash
Equivalents;
Loans, advances, extensions of credit, capital
contributions, Intercompany Acquisitions, and other investments between
Companies (OTHER THAN the Laredo Joint Venture);
Permitted Acquisitions;
Trade accounts receivable which are for goods
furnished or services rendered in the ordinary course of business and
are payable in accordance with customary trade terms;
Financial ▇▇▇▇▇▇ purchased by any Company to the
extent permitted by, and purchased and maintained in compliance with,
the Loan Documents;
Loans to Parent in an amount which (when aggregated
with any Distributions made pursuant to SECTION 9.21(e)) does not
exceed, on any date of determination, the amount of any unpaid
Management Expenses then due and payable to Manager under the
Management Agreement, SO LONG AS (i) no Default or Potential Default
under SECTION 9.32(ii) or (iii) then exists or arises after giving
effect thereto, and (ii) the proceeds of such Loans are used
exclusively by Parent to pay such Management Expenses;
Loans made by any Company in the ordinary course of
business to employees of such Company in an amount which, when
aggregated with any other loans made pursuant to this SECTION 9.20(g)
from and after the Closing Date to any date of determination, does not
exceed $1,000,000;
Investments received by any Company in connection
with (i) the bankruptcy or reorganization of suppliers or customers of
such Company or (ii) in settlement of delinquent obligations of, or
other disputes with, customers and suppliers of such Company arising in
the ordinary course of business; and
Other loans, advances, and investments of the
Companies existing on the Closing Date and identified in SCHEDULE 9.20,
including, without limitation, any loan, advance, or investment in any
Subsidiary.
DISTRIBUTIONS AND RESTRICTED PAYMENTS. No
Company shall, directly or indirectly, declare, make, or pay any
Distribution or Restricted Payment, OTHER THAN:
Distributions declared, made, or paid by Borrower or
its Subsidiaries wholly in the form of their capital stock;
Distributions or Restricted Payments by any
Subsidiary of Borrower to Borrower or any Subsidiary of Borrower; and
SO LONG AS no Default or Potential Default exists or arises
after giving effect thereto, Distributions or Restricted Payments by
any Company to Members of Parent made in accordance with the LLC
Agreement in an amount sufficient to enable the payment of the cash Tax
liabilities of each such Member for federal and state income Taxes,
which Taxes are directly attributable to such Member's portion of the
profit of Parent;
SO LONG AS no Default or Potential Default exists or arises
after giving effect thereto, to the extent any Company is a
partnership, Distributions by such Company made in accordance with its
partnership agreement in an amount sufficient to pay the cash Tax
liabilities of its respective partners for federal and state income
Taxes, which Taxes are directly attributable to each such partner's
profit of such partnership;
Distributions or Restricted Payments to Parent in an
amount which (when aggregated with any loan made pursuant to SECTION
9.20(f)) does not exceed, on any date of determination, the amount of
any unpaid Management Expenses then due and payable to Manager under
the Management Agreement, SO LONG AS (i) no Default or Potential under
SECTION 9.32(ii) or (iii) then exists or arises after giving effect
thereto, and (ii) the proceeds of any such Distribution or Restricted
Payment are used exclusively by Parent to pay such Management Expenses;
Distributions to Parent in any calendar year in an
aggregate amount not to exceed 50% of the Excess Cash Flow of the
Companies for the immediately-preceding calendar year; PROVIDED THAT,
(i) no Default or Potential Default exists or arises as a result
thereof, (ii) the Leverage Ratio of the Companies for the most-recently
ended Rolling Period immediately prior to and after giving effect to
such Distribution is less than 4.00 to 1.00, (iii) the Fixed Charge
Coverage Ratio (calculated on a PRO FORMA basis to include any such
proposed Distribution as a Fixed Charge) after giving effect to such
Distribution is at least 1.20 to 1.00, and (iv) pursuant to the
requirements of SECTION 3.3(c), Borrower has paid the mandatory
prepayment required to be paid in the calendar year in which such
Distribution is being made;
Distributions by any Company to the employees, officers,
directors, or consultants (or their respective permitted transferees)
to purchase stock in accordance with stock option plans or similar
arrangements, SO LONG AS such Distributions do not exceed $1,000,000 in
the aggregate from and after the Closing Date; and
In addition to the Distributions permitted by SECTION
9.21(f), SO LONG AS no Default or Potential Default exists or arises as
a result thereof, a Distribution to Parent of up to $40,000,000 of the
Net Cash Proceeds realized by the Companies from the Laredo Joint
Venture Sale and a subsequent Distribution by Parent to its Members in
an amount not to exceed the amount of the Distribution proceeds
received by Parent pursuant to this CLAUSE (h).
NOTWITHSTANDING THE FOREGOING, Restricted Payments and Distributions
are permitted hereunder only to the extent such Restricted Payment or
Distribution is made in accordance with applicable Law and constitutes
a valid, non-voidable transaction.
RESTRICTIONS ON SUBSIDIARIES. No Guarantor
shall enter into or permit to exist any material arrangement or
agreement (OTHER THAN the Loan Documents) which directly or indirectly
prohibits any such Person from (a) declaring, making, or paying,
directly or indirectly, any Distribution or Restricted Payment to any
Company, (b) paying any Debt owed to any Company, (c) making loans,
advances, or investments to any Company, or (d) transferring any of its
property or assets to any Company.
SALE OF ASSETS. No Company shall sell,
assign, transfer, or otherwise dispose of any of its assets, OTHER THAN
(a) sales of inventory in the ordinary course of business, (b) the
sale, discount, or transfer of delinquent accounts receivable in the
ordinary course of business for purposes of collection, (c) occasional
sales of immaterial assets for consideration not less than the fair
market value thereof, (d) dispositions of obsolete assets and those
assets no longer useful in the conduct of business, (e) sale, leases,
or other disposition among Companies, (f) the Tower Sale-Leaseback in
form and upon terms reasonably satisfactory to Administrative Agent,
(g) disposition of assets pursuant to Permitted Asset Swaps, (h) the
Laredo Joint Venture Sale in form and upon terms satisfactory to
Administrative Agent, (i) if no Default or Potential Default then
exists or arises after giving effect thereto, the sale by Borrower or
any Subsidiary thereof of a portion of such Company's equity interest
in a non-Wholly-owned Subsidiary, SO LONG AS the total Minority
Interest does not exceed 15% of all issued and outstanding capital
stock of such Subsidiary, and (j) if no Default or Potential Default
then exists or arises as a result thereof, sales of other assets in the
ordinary course of business; PROVIDED THAT, (x) the fair market value
of all assets sold pursuant to CLAUSE (j), (A) in any calendar year
does not exceed $35,000,000 in the aggregate, and (B) on a cumulative
basis on and after the Closing Date to any date of determination does
not exceed, in the aggregate, $140,000,000, and (y) concurrently with
any disposition pursuant to this SECTION 9.23, Borrower shall make the
mandatory prepayments (if any) required by SECTIONS 3.3(b).
SALE-LEASEBACK FINANCINGS. No Company will
enter into any sale-leaseback arrangement (OTHER THAN the Tower
Sale-Leaseback in form and upon terms satisfactory to Administrative
Agent) with any Person pursuant to which such Company shall lease any
asset (whether now owned or hereafter acquired) if such asset has been
or is to be sold or transferred by any Company to any other Person.
MERGERS AND DISSOLUTIONS; SALE OF CAPITAL
STOCK. No Company will, directly or indirectly, merge or consolidate
with any other Person, OTHER THAN (a) as a result of the American
Merger, (b) as a result of a Permitted Acquisition, (c) mergers or
consolidations involving Borrower if Borrower is the surviving entity,
and (d) mergers among Wholly-owned Subsidiaries; PROVIDED THAT, in any
merger involving Borrower (including a Permitted Acquisition or
Intercompany Acquisition effected as a merger, OTHER THAN the American
Merger), Borrower must be the surviving entity, and, in any merger
involving any Company (including a Permitted Acquisition or
Intercompany Acquisition effected as a merger), a Company must be the
surviving entity. No Company shall liquidate, wind up, or dissolve (or
suffer any liquidation or dissolution), OTHER THAN liquidations, wind
ups, or dissolutions incident to mergers permitted under this SECTION
9.25. No Company may sell, assign, lease, transfer, or otherwise
dispose of the capital stock (or other ownership interests) of any
Subsidiary of such Company, EXCEPT for sales, leases, transfers, or
other such distributions to (i) to another Company (ii) pursuant to
Permitted Asset Swaps (iii) pursuant to an Intercompany Acquisition or
(iv) as permitted by SECTION 9.23(i). Parent shall not convert its
organizational form from a Delaware limited liability company to a
corporation or other organizational form without (x) the prior written
consent of Administrative Agent and (y) the execution and delivery of
such other certificates, opinions, assumption agreements, and other
instruments as Administrative Agent may reasonably require.
NEW BUSINESS. Borrower and each Subsidiary
of Borrower will not, directly or indirectly, permit or suffer to exist
any material change in the type of businesses in which it is engaged
from the businesses of such Company as conducted on the Closing Date.
Parent will not engage in any business or activity OTHER THAN (a)
holding 100% of the capital stock of Borrower; and (b) exercising
certain ancillary Rights to such ownership pursuant to the Management
Agreement and the Roaming Agreement.
FINANCIAL ▇▇▇▇▇▇.
The Companies shall, within 120 days from the Closing
Date, enter into, purchase, or acquire Financial ▇▇▇▇▇▇ in a form and
upon terms acceptable to Administrative Agent, issued by one or more
Lenders or an institution acceptable to Administrative Agent with a
duration of a period of at least two years, which ensure that the net
interest cost to the Companies is fixed, capped, or hedged with respect
to at least 60% of the Debt of the Companies outstanding on the Closing
Date; PROVIDED, HOWEVER, that the protected rate shall be no greater
than 2.0% above the all-in rate on the Closing Date.
To the extent any Lender or its Affiliate issues a
Financial Hedge to any Company which is permitted by the Loan
Documents, including, without limitation, any Financial ▇▇▇▇▇▇ with
Lenders or their Affiliates obtained in satisfaction of the
requirements of SECTION 9.27(a), such Lender or its Affiliate are
afforded the benefits of (and Borrower [and each other Company, by
execution of the Collateral Documents] confirms a grant of) Liens in
and to the Collateral as evidenced by the Collateral Documents to the
extent of such Lender's (or Affiliate thereof's)
credit exposure under such Financial Hedge; such Lien is PARI PASSU
with that of Administrative Agent on behalf of Lenders).
Financial ▇▇▇▇▇▇ held by any Company whether in
satisfaction of the requirements of this SECTION 9.27 or as otherwise
permitted by the Loan Documents, shall be subject to the following: (i)
each such Lender or other institution issuing a Financial Hedge shall
calculate its credit exposure in a reasonable and customary manner;
(ii) all documentation for such Financial Hedge shall conform to ISDA
standards and must be acceptable to Administrative Agent with respect
to intercreditor issues; (iii) if issued by any Lender or any Affiliate
of a Lender to any Company, the credit exposure under such Financial
Hedge shall be secured by Liens in and to the Collateral as evidenced
by the Collateral Documents on a PARI PASSU basis with the Liens of
Administrative Agent (held for the benefit of Lenders), and such Lender
or Affiliate issuing a Financial Hedge shall, by acceptance of the
benefits of such Liens in the Collateral agree to the provisions of
SECTION 12.12; and (iv) such Financial Hedge shall be incurred in the
ordinary course of business and consistent with prior business
practices of the Companies and not for speculative purposes.
AFFILIATE SUBORDINATION AGREEMENTS. Each
Company shall, simultaneously with the incurrence of any and all future
Debt of such Company (OTHER THAN Debt arising under the Management
Agreement, if any) owed to any one or more Affiliates (OTHER THAN
another Company), cause the appropriate Affiliate or Affiliates to
execute and deliver to Administrative Agent an Affiliate Subordination
Agreement, subordinating the payment of such Debt to the payment of the
Obligation.
AMENDMENTS TO DOCUMENTS. On and after the
Closing Date, no Company shall (a) amend, permit any amendments to,
modify, repeal, or replace any Company's charter, bylaws, limited
liability company agreement (OTHER THAN the LLC Agreement), partnership
agreement, or other organizational documents, if such action could
adversely affect the Rights of Lenders; (b) amend any existing credit
arrangement or enter into any new credit arrangement (to the extent
permitted by the Loan Documents), if such amended or new credit
arrangements contain any provisions which are materially more
restrictive (as reasonably determined by Administrative Agent) than the
provisions of the Loan Documents; (c) without the prior written consent
of Required Lenders, amend, modify, or waive any provision of the
American Merger Documents; (d) amend, permit any amendments to, modify,
repeal, or replace the Management Agreement (including any supplement
or other agreement regarding the calculation of Management Expenses or
the compensation of Manager thereunder) or the LLC Agreement, without
first (i) providing to Administrative Agent a copy of such proposed
amendment, modification, replacement, supplement, or other agreement
and (ii) obtaining Administrative Agent's prior written consent
thereto, if Administrative Agent determines, in its reasonable
discretion, that any such change or changes could reasonably be
expected to adversely affect the Rights of Lenders; or (e) amend or
permit any amendments to any Material Agreements (OTHER THAN those
listed in CLAUSES (c) or (d)) which could reasonably be expected to
adversely affect the Rights of Lenders.
FINANCIAL COVENANTS. As calculated on a
(UNLESS otherwise indicated):
LEVERAGE RATIO. Borrower shall never permit the Leverage Ratio
to be greater than the ratio shown in the table below which corresponds
to the applicable period of determination:
------------------------------------- -----------------------------------
PERIOD LEVERAGE RATIO
------------------------------------- -----------------------------------
------------------------------------- -----------------------------------
From Closing Date to 12/30/2000 9.50 to 1.00
------------------------------------- -----------------------------------
From 12/31/2000 to 03/30/2001 9.15 to 1.00
------------------------------------- -----------------------------------
From 03/31/2001 to 06/29/2001 9.00 to 1.00
------------------------------------- -----------------------------------
From 06/30/2001 to 09/29/2001 8.50 to 1.00
------------------------------------- -----------------------------------
From 09/30/2001 to 12/30/2001 8.25 to 1.00
------------------------------------- -----------------------------------
From 12/31/2001 to 03/30/2002 7.75 to 1.00
------------------------------------- -----------------------------------
From 03/31/2002 to 09/29/2002 7.25 to 1.00
------------------------------------- -----------------------------------
From 09/30/2002 to 03/30/2003 6.75 to 1.00
------------------------------------- -----------------------------------
From 03/31/2003 to 09/29/2003 6.25 to 1.00
------------------------------------- -----------------------------------
From 09/30/2003 to 03/30/2004 5.75 to 1.00
------------------------------------- -----------------------------------
From 03/31/2004 to 09/29/2004 5.25 to 1.00
------------------------------------- -----------------------------------
From 09/30/2004 to 03/30/2005 4.75 to 1.00
------------------------------------- -----------------------------------
From 03/31/2005 to 12/30/2005 4.00 to 1.00
------------------------------------- -----------------------------------
From 12/31/2005 and thereafter 3.50 to 1.00
------------------------------------- -----------------------------------
DEBT SERVICE COVERAGE RATIO. Borrower shall never permit the
Debt Service Coverage Ratio to be less than or equal to 1.10 to 1.00;
PROVIDED THAT, on and after January 1, 2006, determination of the Debt
Service Coverage Ratio will not be required, SO LONG AS the Leverage
Ratio is less than 4.00 to 1.00;
INTEREST COVERAGE RATIO. Borrower shall never permit the
Interest Coverage Ratio to be less than the ratio shown in the table
below which corresponds to the applicable period of determination:
------------------------------------- -----------------------------------
PERIOD INTEREST COVERAGE RATIO
------------------------------------- -----------------------------------
From Closing Date to 06/29/2000 1.20 to 1.00
------------------------------------- -----------------------------------
From 06/30/2000 to 03/30/2001 1.25 to 1.00
------------------------------------- -----------------------------------
From 03/31/2001 to 06/29/2001 1.30 to 1.00
------------------------------------- -----------------------------------
From 06/30/2001 to 09/29/2001 1.35 to 1.00
------------------------------------- -----------------------------------
From 09/30/2001 to 12/30/2001 1.45 to 1.00
------------------------------------- -----------------------------------
From 12/31/2001 to 12/30/2002 1.50 to 1.00
------------------------------------- -----------------------------------
From 12/31/2002 to 12/30/2003 1.60 to 1.00
------------------------------------- -----------------------------------
From 12/31/2003 to 12/30/2005 2.00 to 1.00
------------------------------------- -----------------------------------
From 12/31/2005 and thereafter 2.25 to 1.00
------------------------------------- -----------------------------------
FIXED CHARGE COVERAGE RATIO. On and after December 31, 2001,
Borrower shall never permit the Fixed Charge Coverage Ratio to be less
than or equal to the ratio shown in the table below which corresponds
to the applicable period of determination:
------------------------------------- -----------------------------------
PERIOD FIXED CHARGE COVERAGE RATIO
------------------------------------- -----------------------------------
From December 31, 2001 to 12/31/2003 1.00 to 1.00
------------------------------------- -----------------------------------
From 01/01/2004 and thereafter 1.05 to 1.00
------------------------------------- -----------------------------------
; PROVIDED, HOWEVER, that from and after January 1, 2006, determination
of the Fixed Charge Coverage Ratio will not be required, SO LONG AS the
Leverage Ratio is less than 4.00 to 1.00.
(e) CAPITAL EXPENDITURES.
(i) Borrower shall not permit Capital Expenditures
(OTHER THAN PCS Capital Expenditures permitted by SECTION
9.30(e)(ii)) for any period of determination to exceed the
amount shown in the table below which corresponds to such
period of determination:
------------------------------------- ------------------------------------------
PERIOD PERMITTED CAPITAL EXPENDITURES
------------------------------------- ------------------------------------------
Calendar year 2000 $77,000,000
------------------------------------- ------------------------------------------
Calendar year 2001 $55,000,000
------------------------------------- ------------------------------------------
; PROVIDED, HOWEVER, that the permitted Capital Expenditures
of the Companies for any period of determination may be
increased by an amount equal to the aggregate Supplemental
Capital Expenditures for such period, but in no event shall
the Capital Expenditures permitted by this SECTION 9.30(e)(i)
exceed $96,250,000 in calendar year 2000 and $68,750,000 in
calendar year 2001.
(ii) On and after the Closing Date, (i) Borrower
shall not make PCS Capital Expenditures which individually on
or in the aggregate exceed $100,000,000; PROVIDED THAT, no PCS
Capital Expenditure may be made prior to the second
anniversary of the Closing Date, unless such PCS Capital
Expenditure are funded solely by a capital contribution from
Parent, which capital contribution (A) is expressly designated
and reserved for PCS Capital Expenditures and (B) is not
funded with proceeds of any Borrowings under the Loan
Documents or proceeds of any other Debt of Parent.
TOWER SALE-LEASEBACK. On or prior to June
30, 2001, the Companies shall (a) enter into one or more Tower
Sale-Leaseback Agreements, pursuant to which all or substantially all
of the Towers are to be sold to a non-Affiliate of the Companies, (b)
deliver to Administrative Agent a copy of such sale-leaseback
agreement, which must be in form and terms satisfactory to
Administrative Agent, (c) consummate the Tower Sale-Leaseback
substantially in accordance with the sale-leaseback documents approved
by Administrative Agent, and (d) pay the mandatory prepayment required
by SECTION 3.3(b)(iv).
PARENT COVENANT. By execution hereof,
Parent covenants and agrees (i) to cause Manager to operate the
Companies' Systems and businesses in compliance with the Loan
Documents, (ii) to cause all payments under the Roaming Agreements to
be paid directly to Borrower, and (iii) in the event any payments under
the Roaming Agreements are received by Parent, to immediately
contribute such payments to Borrower as a capital contribution.
SECTION DEFAULT. The term "DEFAULT" means the
occurrence of any one or more of the following events:
PAYMENT OF OBLIGATION. The failure or
refusal of any Company to pay (a) all or any part of the Principal Debt
when the same becomes due (whether by its terms, by acceleration, or as
otherwise provided in the Loan Documents); (b) interest or fees within
three days after the same become due and payable in accordance with the
Loan Documents; or (c) any other part of the Obligation (including,
without limitation, any deposit of cash collateral required pursuant to
SECTION 2.5) within three days after demand by Administrative Agent or
any Lender.
COVENANTS. The failure or refusal of
Borrower (and, if applicable, any other Company) to punctually and
properly perform, observe, and comply with:
Any covenant, agreement, or condition contained in
SECTIONS 9.1, 9.3 ,9.4, 9.6, 9.10, 9.12, 9.13, 9.14, 9.16, 9.17, 9.20
through 9.25, 9.29, 9.30, and 9.32; and
Any other covenant, agreement, or condition contained
in any Loan Document (OTHER THAN the covenants to pay the Obligation
set forth in SECTION 10.1 and the covenants in SECTION 10.2(a)), and
such failure or refusal continues for 20 days.
DEBTOR RELIEF. Any Company (a) shall not be
Solvent, (b) fails to pay its Debts generally as they become due, (c)
voluntarily seeks, consents to, or acquiesces in the benefit of any
Debtor Relief Law, OTHER THAN as a creditor or claimant, or (d) becomes
a party to or is made the subject of any proceeding provided for by any
Debtor Relief Law, OTHER THAN as a creditor or claimant, that could
suspend or otherwise adversely affect the Rights of Administrative
Agent or any Lender granted in the Loan Documents (UNLESS, in the event
such proceeding is involuntary, the petition instituting same is
dismissed within 60 days after its filing).
JUDGMENTS AND ATTACHMENTS. Any Company
fails, within 60 days after entry, to pay, bond, or otherwise discharge
any judgment or order for the payment of money in excess of $5,000,000
(individually or collectively) or any warrant of attachment,
sequestration, or similar proceeding against any of its assets having a
value (individually or collectively) of $5,000,000 which is not stayed
on appeal.
GOVERNMENT ACTION. (a) A final non-
appealable order is issued by any Governmental Authority, including,
without limitation, the FCC or the United States Justice Department,
seeking to cause any Company to divest a significant portion of its
assets pursuant to any antitrust, restraint of trade, unfair
competition, industry regulation, or similar Laws, or (b) any
Governmental Authority shall condemn, seize, or otherwise appropriate,
or take custody or control of all or any substantial portion of the
assets of any Company.
MISREPRESENTATION. Any representation or
warranty made by any Company contained in any Loan Document shall at
any time prove to have been incorrect in any material respect when
made.
CHANGE OF MANAGEMENT. Any Person, OTHER
THAN DCS, AWS, an Affiliate of DCS, or an Eligible Successor Manager is
or becomes the Manager of the Companies' Systems pursuant to the
Management Agreement or otherwise.
CHANGE OF CONTROL. The occurrence of a
Change of Control.
CHANGE BUSINESS OF PARENT. Parent engages in
any business or activity OTHER THAN (a) holding 100% of the capital
stock of Borrower and (b) ancillary activities related to the
Management Agreement and the Roaming Agreements.
AUTHORIZATIONS. (a) Any Authorization
necessary for the ownership or operations of any Company expires, and
on or prior to such expiration, the same is not renewed or replaced by
another Authorization authorizing substantially the same operations by
such Company; or (b) any Authorization necessary for the ownership or
operations of any Company is canceled, revoked, terminated, rescinded,
annulled, suspended, or modified in a materially
adverse respect, or is no longer in full force and effect, or the
grant or the effectiveness thereof is stayed, vacated, reversed, or
set aside, (c) any Company is required by any Governmental Authority
to halt construction or operations under any Authorization and such
action continues uncorrected for 30 days after the applicable Company
has received notice thereof; or (d) any Governmental Authority makes
any other final non-appealable determination the effect of which would
be to affect materially and adversely the operations of any Company as
now conducted.
DEFAULT UNDER OTHER DEBT AND AGREEMENTS. (a)
Any Company fails to pay when due (after lapse of any applicable grace
periods) any Debt of such Company (OTHER THAN the Obligation) in
excess (individually or collectively) of $10,000,000; (b) the
acceleration of any Debt of any Company or the occurrence of any event
or condition that (with notice or lapse of time) would enable the
holder of such Debt or any Person acting on behalf of such holder to
accelerate the maturing thereof, which Debt exceeds (individually or
collectively) $10,000,000; or (c) any default exists under any other
Material Agreement if such default could reasonably be expected to be
a Material Adverse Event.
LCS. Administrative Agent shall have been
served with, or becomes otherwise subject to, a court order,
injunction, or other process or decree restraining or seeking to
restrain it from paying any amount under any LC and EITHER (a) there
has been a drawing under such LC which Administrative Agent would
otherwise be obligated to pay and Borrower has refused to reimburse
Administrative Agent for such payment or (b) the expiration date of
such LC has occurred but the Right of any beneficiary thereunder to
draw under such LC has been extended past the expiration date in
connection with the pendency of the related court action or proceeding
AND Borrower has failed to deposit within 24 hours with Administrative
Agent cash collateral in an amount equal to the maximum drawing which
could be made under such LC.
VALIDITY AND ENFORCEABILITY OF LOAN
DOCUMENTS. Any Loan Document shall, at any time after its execution
and delivery and for any reason, cease to be in full force and effect
in any material respect or be declared to be null and void (OTHER THAN
in accordance with the terms hereof or thereof) or the validity or
enforceability thereof be contested by any Company party thereto or
any Company shall deny in writing that it has any liability or any
further liability or obligations under any Loan Document to which it
is a party.
MATERIAL ADVERSE EFFECT. If any event or
condition shall exist which could reasonably be expected to be a
Material Adverse Event.
ENVIRONMENTAL LIABILITY. If any event or
condition shall occur or exist with respect to any activity or
substance regulated under the Environmental Law and as a result of
such event or condition, any Company shall have incurred or in the
opinion of the Required Lenders will be reasonably likely to incur a
liability in excess of $5,000,000 liability during any consecutive 12
month period.
PLEDGED STOCK. (a) Administrative Agent
ceases to hold as Collateral (for the benefit of Lenders) a perfected
first priority Lien on all of the issued and outstanding shares of
common stock issued by all Companies (OTHER THAN Parent), and such
failure is not cured within five Business Days; or (b) any Collateral
Document after delivery thereof pursuant to SECTION 6 shall for any
reason (OTHER THAN pursuant to the terms thereof) cease to create a
valid and perfected first priority Lien on and security interest in
the Collateral purported to be covered thereby, EXCEPT as permitted
under the Loan Documents.
DISSOLUTION. Except for dissolutions in
connection with Intercompany Acquisitions otherwise permitted by this
Agreement, any Company shall dissolve or otherwise terminate its
existence.
SECTION RIGHTS AND REMEDIES.
REMEDIES UPON DEFAULT.
DEBTOR RELIEF. If a Default exists under SECTION 10.3(c) or
10.3(d), the commitment to extend credit hereunder shall automatically
terminate and the entire unpaid balance of the Obligation shall
automatically become due and payable without any action or notice of
any kind whatsoever, and Borrower shall be required to provide cash
collateral in an amount equal to 110% of the LC Exposure then existing
in accordance with SECTION 2.5(g).
OTHER DEFAULTS. If any Default exists, Administrative Agent
may (and, subject to the terms of SECTION 12, shall upon the request of
Required Lenders) or Required Lenders may, do any one or more of the
following: (i) if the maturity of the Obligation has not already been
accelerated under SECTION 11.1(a), declare the entire unpaid balance of
the Obligation, or any part thereof, immediately due and payable,
whereupon it shall be due and payable; (ii) terminate the commitments
of Lenders to extend credit hereunder; (iii) reduce any claim to
judgment; (iv) to the extent permitted by Law, exercise (or request
each Lender to, and each Lender shall be entitled to, exercise) the
Rights of offset or banker's Lien against the interest of each Company
in and to every account and other property of any Company which are in
the possession of Administrative Agent or any Lender to the extent of
the full amount of the Obligation (to the extent permitted by Law, each
Company being deemed directly obligated to each Lender in the full
amount of the Obligation for such purposes); (v) if the maturity of the
Obligation has not already been accelerated under SECTION 11.1(a),
demand Borrower to provide cash collateral in an amount equal to 110%
of the LC Exposure then existing in accordance with SECTION 2.5(g); and
(vi) exercise any and all other legal or equitable Rights afforded by
the Loan Documents, the Laws of the State of New York, or any other
applicable jurisdiction as Administrative Agent or Required Lenders (as
the case may be) shall deem appropriate, or otherwise, including,
without limitation, the Right to bring suit or other proceedings before
any Governmental Authority EITHER for specific performance of any
covenant or condition contained in any of the Loan Documents or in aid
of the exercise of any Right granted to Administrative Agent or any
Lender in any of the Loan Documents.
COMPANY WAIVERS. To the extent permitted by
Law, the Companies hereby waive presentment and demand for payment,
protest, notice of intention to accelerate, notice of acceleration,
and notice of protest and nonpayment, and agree that their respective
liability with respect to the Obligation (or any part thereof) shall
not be affected by any renewal or extension in the time of payment of
the Obligation (or any part thereof), by any indulgence, or by any
release or change in any security for the payment of the Obligation
(or any part thereof).
PERFORMANCE BY ADMINISTRATIVE AGENT. If any
covenant, duty, or agreement of any Company is not performed in
accordance with the terms of the Loan Documents, after the occurrence
and during the continuance of a Default, Administrative Agent may, at
its option (but subject to the approval of Required Lenders), perform
or attempt to perform such covenant, duty, or agreement on behalf of
such Company. In such event, any amount expended by Administrative
Agent in such performance or attempted performance shall be payable by
the Companies, jointly and severally, to Administrative Agent on
demand, shall become part of the Obligation, and shall bear interest
at the Default Rate from the date of such
expenditure by Administrative Agent until paid. Notwithstanding the
foregoing, it is expressly understood that Administrative Agent does
not assume, and shall never have, EXCEPT by its express written
consent, any liability or responsibility for the performance of any
covenant, duty, or agreement of any Company.
DELEGATION OF DUTIES AND RIGHTS. Lenders may
perform any of their duties or exercise any of their Rights under the
Loan Documents by or through their respective Representatives.
NOT IN CONTROL. Nothing in any Loan Document
shall, or shall be deemed to (a) give any Agent or any Lender the
Right to exercise control over the assets (including real property),
affairs, or management of any Company, (b) preclude or interfere with
compliance by any Company with any Law, or (c) require any act or
omission by any Company that may be harmful to Persons or property.
Any "MATERIAL ADVERSE EVENT" or other materiality qualifier in any
representation, warranty, covenant, or other provision of any Loan
Document is included for credit documentation purposes only and shall
not, and shall not be deemed to, mean that any Agent or any Lender
acquiesces in any non-compliance by any Company with any Law or
document, or that any Agent or any Lender does not expect any Company
to promptly, diligently, and continuously carry out all appropriate
removal, remediation, and termination activities required or
appropriate in accordance with all Environmental Laws. Agents and
Lenders have no fiduciary relationship with or fiduciary duty to any
Company arising out of or in connection with the Loan Documents, and
the relationship between Agents and Lenders, on the one hand, and the
Companies, on the other hand, in connection with the Loan Documents is
solely that of debtor and creditor. The power of Agents and Lenders
under the Loan Documents is limited to the Rights provided in the Loan
Documents, which Rights exist solely to assure payment and performance
of the Obligation and may be exercised in a manner calculated by
Agents and Lenders in their respective good faith business judgment.
COURSE OF DEALING. The acceptance by
Administrative Agent or Lenders at any time and from time to time of
partial payment on the Obligation shall not be deemed to be a waiver
of any Default then existing. No waiver by Administrative Agent,
Required Lenders, or Lenders of any Default shall be deemed to be a
waiver of any other then-existing or subsequent Default. No delay or
omission by Administrative Agent, Required Lenders, or Lenders in
exercising any Right under the Loan Documents shall impair such Right
or be construed as a waiver thereof or any acquiescence therein, nor
shall any single or partial exercise of any such Right preclude other
or further exercise thereof, or the exercise of any other Right under
the Loan Documents or otherwise.
CUMULATIVE RIGHTS. All Rights available to
Administrative Agent and Lenders under the Loan Documents are
cumulative of and in addition to all other Rights granted to
Administrative Agent and Lenders at law or in equity, whether or not
the Obligation is due and payable and whether or not Administrative
Agent or Lenders have instituted any suit for collection, foreclosure,
or other action in connection with the Loan Documents.
APPLICATION OF PROCEEDS. Any and all
proceeds ever received by Administrative Agent or Lenders from the
exercise of any Rights pertaining to the Obligation shall be applied
to the Obligation in the order and manner set forth in SECTION 3.12.
CERTAIN PROCEEDINGS. Each Company will
promptly execute and deliver, or cause the execution and delivery of,
all applications, certificates, instruments, registration statements,
and all other documents and papers Administrative Agent or Lenders may
reasonably
request in connection with the obtaining of any consent, approval,
registration, qualification, permit, license, or Authorization of any
Governmental Authority or other Person necessary or appropriate for
the effective exercise of any Rights under the Loan Documents. Because
the Companies agree that Administrative Agent's and Lenders' remedies
at Law for failure of the Companies to comply with the provisions of
this Section would be inadequate and that such failure would not be
adequately compensable in damages, the Companies agree that the
covenants of this Section may be specifically enforced.
LIMITATION OF RIGHTS. Notwithstanding any
other provision of any Loan Document, any action taken or proposed to
be taken by Administrative Agent, any Agent, or any Lender under any
Loan Document which would affect the operational, voting, or other
control of any Company, shall be pursuant to SECTION 310(d) of the
Communications Act, any applicable state Law, and the applicable rules
and regulations thereunder and, if and to the extent required thereby,
subject to the prior consent of the FCC or any applicable PUC.
EXPENDITURES BY LENDERS. Borrower shall
promptly pay within 15 Business Days after request therefor (a) all
reasonable costs, fees, and expenses paid or incurred by
Administrative Agent and Arranger, incident to any Loan Document
(including, without limitation, the reasonable fees and expenses of
counsel to Administrative Agent and Arranger and the allocated cost of
internal counsel in connection with the negotiation, preparation,
delivery, execution, coordination and administration of the Loan
Documents and any related amendment, waiver, or consent) and (b) all
reasonable costs and expenses of Lenders and Administrative Agent
incurred by Administrative Agent or any Lender in connection with the
enforcement of the obligations of any Company arising under the Loan
Documents (including, without limitation, costs and expenses incurred
in connection with any workout or bankruptcy) or the exercise of any
Rights arising under the Loan Documents (including, without
limitation, reasonable attorneys' fees including the allocated cost of
internal counsel, court costs and other costs of collection), all of
which shall be a part of the Obligation and shall bear interest at the
Default Rate from the date due until the date repaid.
INDEMNIFICATION. BORROWER AND EACH OTHER
COMPANY (BY EXECUTION OF A GUARANTY) AGREE TO INDEMNIFY AND HOLD
HARMLESS EACH AGENT, ARRANGER, AND EACH LENDER AND EACH OF THEIR
RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, ATTORNEYS, AND ADVISORS (EACH, AN "INDEMNIFIED
PARTY") FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES,
LIABILITIES, (INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL
LIABILITIES) COSTS, AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES) THAT MAY BE INCURRED BY OR ASSERTED OR
AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE ARISING OUT OF OR
IN CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT LIMITATION, IN
CONNECTION WITH ANY INVESTIGATION, LITIGATION, OR PROCEEDING OR
PREPARATION OF DEFENSE IN CONNECTION THEREWITH) THE LOAN DOCUMENTS,
ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED
USE OF THE PROCEEDS OF THE BORROWINGS (INCLUDING ANY OF THE FOREGOING
ARISING FROM THE NEGLIGENCE OF THE INDEMNIFIED PARTY), EXCEPT TO THE
EXTENT SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE IS FOUND
IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT. IN THE CASE OF AN INVESTIGATION,
LITIGATION
OR OTHER PROCEEDING TO WHICH THE INDEMNITY IN THIS SECTION 11.12
APPLIES, SUCH INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH
INVESTIGATION, LITIGATION OR PROCEEDING IS BROUGHT BY BORROWER, ITS
DIRECTORS, SHAREHOLDERS OR CREDITORS OR AN INDEMNIFIED PARTY OR ANY
OTHER PERSON OR ANY INDEMNIFIED PARTY IS OTHERWISE A PARTY THERETO AND
WHETHER OR NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED.
BORROWER AND EACH OTHER COMPANY (BY EXECUTION OF A GUARANTY) AGREE NOT
TO ASSERT ANY CLAIM AGAINST ANY INDEMNIFIED PARTY ON ANY THEORY OF
LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES
ARISING OUT OF OR OTHERWISE RELATING TO THE LOAN DOCUMENTS, ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE
PROCEEDS OF THE BORROWINGS. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY
OTHER AGREEMENT OF BORROWER OR THE OTHER COMPANIES HEREUNDER, THE
AGREEMENTS AND OBLIGATIONS OF THE COMPANIES CONTAINED IN THIS SECTION
11.12 SHALL SURVIVE THE PAYMENT IN FULL OF THE BORROWINGS AND ALL
OTHER AMOUNTS PAYABLE UNDER THE LOAN DOCUMENTS.
SECTION AGREEMENT AMONG LENDERS.
ADMINISTRATIVE AGENT.
APPOINTMENT OF ADMINISTRATIVE AGENT. Each Lender hereby
appoints Bank of America, N.A. (and Bank of America, N.A. hereby
accepts such appointment) as its nominee and agent, in its name and on
its behalf: (i) to act as nominee for and on behalf of such Lender in
and under all Loan Documents; (ii) to arrange the means whereby the
funds of Lenders are to be made available to Borrower under the Loan
Documents; (iii) to take such action as may be requested by any Lender
under the Loan Documents (when such Lender is entitled to make such
request under the Loan Documents and after such requesting Lender has
obtained the concurrence of such other Lenders as may be required under
the Loan Documents); (iv) to receive all documents and items to be
furnished to Lenders under the Loan Documents; (v) to timely
distribute, and Administrative Agent agrees to so distribute, to each
Lender all material information, requests, documents, and items
received from Borrower under the Loan Documents; (vi) to promptly
distribute to each Lender its ratable part of each payment or
prepayment (whether voluntary, as proceeds of Collateral upon or after
foreclosure, as proceeds of insurance thereon, or otherwise) in
accordance with the terms of the Loan Documents; (vii) to deliver to
the appropriate Persons requests, demands, approvals, and consents
received from Lenders; and (viii) to execute, on behalf of Lenders,
such releases or other documents or instruments as are permitted by the
Loan Documents or as directed by Lenders from time to time; PROVIDED,
HOWEVER, Administrative Agent shall not be required to take any action
which exposes Administrative Agent to personal liability or which is
contrary to the Loan Documents or applicable Law.
RESIGNATION OF ADMINISTRATIVE AGENT; SUCCESSOR ADMINISTRATIVE
AGENTS. Administrative Agent may resign at any time as Administrative
Agent under the Loan Documents by giving written notice thereof to
Lenders and may be removed as Administrative Agent under the Loan
Documents at any time with cause by Required Lenders. Should the
initial or any successor Administrative Agent ever cease to be a party
hereto or should the initial or any successor Administrative Agent ever
resign or be removed as Administrative Agent, then Required Lenders
shall elect the successor Administrative Agent from among the Lenders
(OTHER THAN the resigning Administrative Agent). If no successor
Administrative Agent shall have been so appointed by
Required Lenders, within 30 days after the retiring Administrative
Agent's giving of notice of resignation or Required Lenders' removal
of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of Lenders, appoint a successor Administrative
Agent, which shall be a commercial bank having a combined capital and
surplus of at least $1,000,000,000. Upon the acceptance of any
appointment as Administrative Agent under the Loan Documents by a
successor Administrative Agent, such successor Administrative Agent
shall thereupon succeed to and become vested with all the Rights of
the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations of
Administrative Agent under the Loan Documents (PROVIDED, HOWEVER, THAT
when used in connection with LCs issued and outstanding prior to the
appointment of the successor Administrative Agent, "ADMINISTRATIVE
AGENT" shall continue to refer solely to the bank that issued the
outstanding LC; PROVIDED FURTHER that any LCs issued or renewed after
the appointment of any successor Administrative Agent shall be issued
by such successor Administrative Agent), and each Lender shall execute
such documents as any Lender may reasonably request to reflect such
change in and under the Loan Documents. After any retiring
Administrative Agent's resignation or removal as Administrative Agent
under the Loan Documents, the provisions of this SECTION 12 shall
inure to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under the Loan Documents.
ADMINISTRATIVE AGENT AS A LENDER; NON-FIDUCIARY.
Administrative Agent, in its capacity as a Lender, shall have the same
Rights under the Loan Documents as any other Lender and may exercise
the same as though it were not acting as Administrative Agent; the term
"LENDER" shall, UNLESS the context otherwise indicates, include
Administrative Agent and any issuer of an LC hereunder; and any
resignation or removal of Administrative Agent hereunder shall not
impair or otherwise affect any Rights which it has or may have in its
capacity as an individual Lender. Each Lender and Borrower agree that
Administrative Agent is not a fiduciary for Lenders or for Borrower but
simply is acting in the capacity described herein to alleviate
administrative burdens for both Borrower and Lenders, that
Administrative Agent has no duties or responsibilities to Lenders or
Borrower EXCEPT those expressly set forth herein, and that
Administrative Agent in its capacity as a Lender has all Rights of any
other Lender.
OTHER ACTIVITIES OF ADMINISTRATIVE AGENT. Administrative Agent
and its Affiliates may now or hereafter be engaged in one or more loan,
letter of credit, leasing, or other financing transactions with
Borrower, act as trustee or depositary for Borrower, or otherwise be
engaged in other transactions with Borrower (collectively, the "OTHER
ACTIVITIES") not the subject of the Loan Documents. Without limiting
the Rights of Lenders specifically set forth in the Loan Documents,
Administrative Agent and its Affiliates shall not be responsible to
account to Lenders for such other activities, and no Lender shall have
any interest in any other activities, any present or future guaranties
by or for the account of Borrower which are not contemplated or
included in the Loan Documents, any present or future offset exercised
by Administrative Agent and its Affiliates in respect of such other
activities, any present or future property taken as security for any
such other activities, or any property now or hereafter in the
possession or control of Administrative Agent or its Affiliates which
may be or become security for the obligations of Borrower or any
Company arising under the Loan Documents by reason of the general
description of indebtedness secured or of property contained in any
other agreements, documents or instruments related to any such other
activities; PROVIDED THAT, if any payments in respect of such
guaranties or such property or the proceeds thereof shall be applied to
reduction of the Obligation arising under the Loan Documents, then each
Lender shall be entitled to share in such application ratably.
EXPENSES. Upon demand by Administrative
Agent, each Lender shall pay its ratable portion of any reasonable
expenses (including, without limitation, court costs,
reasonable attorneys' fees, and other costs of collection) incurred by
Administrative Agent in connection with any of the Loan Documents if
and to the extent Administrative Agent does not receive reimbursement
therefor from other sources within 60 days after incurred; PROVIDED
THAT, each Lender shall be entitled to receive its ratable portion of
any reimbursement for such expenses, or part thereof, which
Administrative Agent subsequently receives from such other sources.
PROPORTIONATE ABSORPTION OF LOSSES. Except
as otherwise provided in the Loan Documents, nothing in the Loan
Documents shall be deemed to give any Lender any advantage over any
other Lender insofar as the Obligation arising under the Loan
Documents is concerned, or to relieve any Lender from absorbing its
ratable portion of any losses sustained with respect to the Obligation
(EXCEPT to the extent such losses result from unilateral actions or
inactions of any Lender that are not made in accordance with the terms
and provisions of the Loan Documents).
DELEGATION OF DUTIES; RELIANCE.
Administrative Agent may perform any of its duties or exercise any of
its Rights under the Loan Documents by or through its Representatives.
Administrative Agent and its Representatives shall (a) be entitled to
rely upon (and shall be protected in relying upon) any writing,
resolution, notice, consent, certificate, affidavit, letter,
cablegram, telecopy, telegram, telex or teletype message, statement,
order, or other documents or conversation believed by it or them to be
genuine and correct and to have been signed or made by the proper
Person and, with respect to legal matters, upon opinion of counsel
selected by Administrative Agent, (b) be entitled to deem and treat
each Lender as the owner and holder of the Obligation owed to such
Lender for all purposes until, subject to SECTION 13.13, written
notice of the assignment or transfer thereof shall have been given to
and received by Administrative Agent (and any request, authorization,
consent, or approval of any Lender shall be conclusive and binding on
each subsequent holder, assignee, or transferee of the Obligation owed
to such Lender or portion thereof until such notice is given and
received), (c) not be deemed to have notice of the occurrence of a
Default or Potential Default UNLESS a responsible officer of
Administrative Agent, who handles matters associated with the Loan
Documents and transactions thereunder, has received written notice
from a Lender or Borrower and stating that such notice is a "NOTICE OF
DEFAULT," and (d) be entitled to consult with legal counsel (including
counsel for Borrower), independent accountants, and other experts
selected by Administrative Agent and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance
with the advice of such counsel, accountants or experts.
LIMITATION OF LIABILITY.
GENERAL. None of the Agents or any of their respective
Representatives shall be liable for any action taken or omitted to be
taken by it or them under the Loan Documents in good faith and
reasonably believed by it or them to be within the discretion or power
conferred upon it or them by the Loan Documents or be responsible for
the consequences of any error of judgment, EXCEPT for fraud, gross
negligence, or willful misconduct; and none of the Agents or any of
their respective Representatives has a fiduciary relationship with any
Lender by virtue of the Loan Documents (PROVIDED THAT, nothing herein
shall negate the obligation of Administrative Agent to account for
funds received by it for the account of any Lender).
NON-DISCRETIONARY ACTIONS; INDEMNIFICATION. Unless indemnified
to its satisfaction against loss, cost, liability, and expense, neither
Administrative Agent nor any other Agent shall be compelled to do any
act under the Loan Documents or to take any action toward the execution
or enforcement of the powers thereby created or to prosecute or defend
any suit in respect of the
Loan Documents. If Administrative Agent requests instructions from
Lenders or Required Lenders, as the case may be, with respect to any
act or action (including, without limitation, any failure to act) in
connection with any Loan Document, Administrative Agent shall be
entitled (but shall not be required) to refrain (without incurring any
liability to any Person by so refraining) from such act or action
UNLESS and until it has received such instructions. Except where
action of Required Lenders or all Lenders is required in the Loan
Documents, Administrative Agent may act hereunder in its own
discretion without requesting instructions. In no event, HOWEVER,
shall Administrative Agent or any of its respective Representatives be
required to take any action which it or they determine could incur for
it or them criminal or onerous civil liability. Without limiting the
generality of the foregoing, no Lender shall have any Right of action
against Administrative Agent as a result of Administrative Agent's
acting or refraining from acting hereunder in accordance with the
instructions of Required Lenders (or all Lenders if required in the
Loan Documents).
INDEPENDENT CREDIT DECISION. Neither Administrative Agent nor
any other Agent shall be responsible in any manner to any Lender or any
Participant for, and each Lender represents and warrants that it has
not relied upon Administrative Agent or any other Agent in respect of,
(i) the creditworthiness of any Company and the risks involved to such
Lender, (ii) the effectiveness, enforceability, genuineness, validity,
or the due execution of any Loan Document, (iii) any representation,
warranty, document, certificate, report, or statement made therein or
furnished thereunder or in connection therewith, (iv) the existence,
priority, or perfection of any Lien hereafter granted or purported to
be granted under any Loan Document, or (v) observation of or compliance
with any of the terms, covenants, or conditions of any Loan Document on
the part of any Company. Each Lender agrees to indemnify Administrative
Agent and its respective Representatives and hold them harmless from
and against (but limited to such Lender's Pro Rata Part of) any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses, and reasonable
disbursements of any kind or nature whatsoever which may be imposed on,
asserted against, or incurred by them in any way relating to or arising
out of the Loan Documents or any action taken or omitted by them under
the Loan Documents (INCLUDING ANY OF THE FOREGOING ARISING FROM THE
NEGLIGENCE OF ADMINISTRATIVE AGENT OR ITS REPRESENTATIVES), to the
extent Administrative Agent and its respective Representatives are not
reimbursed for such amounts by any Company (PROVIDED THAT,
Administrative Agent, and its respective Representatives shall not have
the Right to be indemnified hereunder for its or their own fraud, gross
negligence, or willful misconduct).
DEFAULT; COLLATERAL.
Upon the occurrence and continuance of a Default,
Lenders agree to promptly confer in order that Required Lenders or
Lenders, as the case may be, may agree upon a course of action for the
enforcement of the Rights of Lenders; and Administrative Agent shall be
entitled to refrain from taking any action (without incurring any
liability to any Person for so refraining) UNLESS and until
Administrative Agent shall have received instructions from Required
Lenders. All Rights of action under the Loan Documents and all Rights
to the Collateral, if any, hereunder may be enforced by Administrative
Agent and any suit or proceeding instituted by Administrative Agent in
furtherance of such enforcement shall be brought in its name as
Administrative Agent without the necessity of joining as plaintiffs or
defendants any other Lender, and the recovery of any judgment shall be
for the benefit of Lenders subject to the expenses of Administrative
Agent. In actions with respect to any property of Borrower,
Administrative Agent is acting for the ratable benefit of each Lender.
Any and all agreements to subordinate (whether made heretofore or
hereafter) other indebtedness or obligations of Borrower to the
Obligation shall be construed as being for the ratable benefit of each
Lender.
Each Lender authorizes and directs Administrative
Agent to enter into the Collateral Documents for the benefit of the
Lenders. EXCEPT to the extent unanimity (or other percentage set forth
in SECTION 13.11) is required hereunder, each Lender agrees that any
action taken by the Required Lenders in accordance with the provisions
of the Loan Documents, and the exercise by the Required Lenders of the
powers set forth herein or therein, TOGETHER WITH such other powers as
are reasonably incidental thereto, shall be authorized and binding upon
all of the Lenders.
Administrative Agent is hereby authorized on behalf
of all of the Lenders, without the necessity of any notice to or
further consent from any Lender, from time to time to take any action
with respect to any Collateral or Collateral Documents which may be
necessary to perfect and maintain perfected the Liens upon the
Collateral granted pursuant to the Collateral Documents.
Administrative Agent shall have no obligation
whatsoever to any Lender or to any other Person to assure that the
Collateral exists or is owned by any Company or is cared for,
protected, or insured or has been encumbered or that the Liens granted
to Administrative Agent herein or pursuant hereto have been properly or
sufficiently or lawfully created, perfected, protected, or enforced, or
are entitled to any particular priority, or to exercise at all or in
any particular manner or under any duty of care, disclosure, or
fidelity, or to continue exercising, any of the Rights granted or
available to Administrative Agent in this SECTION 12.6 or in any of the
Collateral Documents; IT BEING UNDERSTOOD and agreed that in respect of
the Collateral, or any act, omission, or event related thereto,
Administrative Agent may act in any manner it may deem appropriate, in
its sole discretion, given Administrative Agent's own interest in the
Collateral as one of the Lenders and that Administrative Agent shall
have no duty or liability whatsoever to any Lender, OTHER THAN to act
without gross negligence or willful misconduct.
Lenders hereby irrevocably authorize Administrative
Agent, at its option and in its discretion, to release any Lien granted
to or held by Administrative Agent upon any Collateral: (i) upon
termination of the Total Commitment and payment and satisfaction of the
Obligation; (ii) constituting property in which no Company owned an
interest at the time the Lien was granted or at any time thereafter;
(iii) constituting property leased to a Company under a lease which has
expired or been terminated in a transaction permitted under the Loan
Document or is about to expire and which has not been, and is not
intended by such Company to be, renewed; (iv) consisting of an
instrument evidencing Debt pledged to Administrative Agent (for the
benefit of Lenders), if the Debt evidenced thereby has been paid in
full; (v) upon the sale, transfer, or disposition of Collateral which
is expressly permitted pursuant to the Loan Documents, including,
without limitation, under SECTION 9.23; (vi) as contemplated in SECTION
6.4; or (vii) if approved, authorized, or ratified in writing by all
necessary Lenders. Upon request by Administrative Agent at any time,
Lenders will confirm in writing Administrative Agent's authority to
release particular types or items of Collateral pursuant to this
SECTION 12.6.
In furtherance of the authorizations set forth in
this SECTION 12.6, each Lender hereby irrevocably appoints
Administrative Agent its attorney-in-fact, with full power of
substitution, for and on behalf of and in the name of each such Lender,
(i) to enter into Collateral Documents (including, without limitation,
any appointments of substitute trustees under any Collateral Document),
(ii) to take action with respect to the Collateral and Collateral
Documents to perfect, maintain, and preserve Lender's Liens, and (iii)
to execute instruments of release or to take other action necessary to
release Liens upon any Collateral to the extent authorized in PARAGRAPH
(e) hereof. This power of attorney shall be liberally, not
restrictively, construed so as to give the greatest latitude to
Administrative Agent's power, as attorney, relative to the Collateral
matters described in this SECTION 12.6. The powers and authorities
herein conferred on Administrative Agent may be exercised by
Administrative Agent through any Person who, at the
time of theexecution of a particular instrument, is an officer of
Administrative Agent. The power of attorney conferred by this SECTION
12.6(f) is granted for valuable consideration and is coupled with an
interest and is irrevocable SO LONG AS the Obligation, or any part
thereof, shall remain unpaid or Lenders are obligated to make any
Borrowings under the Loan Documents.
LIMITATION OF LIABILITY. To the extent
permitted by Law, (a) neither Administrative Agent nor any other Agent
(acting in their respective agent capacities) shall incur any liability
to any other Lender, Agent, or Participant EXCEPT for acts or omissions
resulting from its own fraud, gross negligence or willful misconduct,
and (b) neither Administrative Agent nor any other Agent, Lender, or
Participant shall incur any liability to any other Person for any act
or omission of any other Lender, Agent, or Participant.
RELATIONSHIP OF LENDERS. Nothing herein
shall be construed as creating a partnership or joint venture among
Agents and Lenders.
BENEFITS OF AGREEMENT. None of the
provisions of this SECTION 12 shall inure to the benefit of any Company
or any other Person OTHER THAN Lenders; consequently, no Company or
other Person shall be entitled to rely upon, or to raise as a defense,
in any manner whatsoever, the failure of any Agent or any Lender to
comply with such provisions.
AGENTS. None of the Lenders identified in
this Agreement as "CO-SYNDICATION AGENTS," "CO-DOCUMENTATION AGENTS,"
"MANAGING AGENT," or "CO-AGENT" shall have any Rights, powers,
obligations, liabilities, responsibilities, or duties under the Loan
Documents OTHER THAN those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders so identified as a
"CO-SYNDICATION AGENT," "CO-DOCUMENTATION AGENT," "MANAGING AGENT," or
"CO-AGENT" shall have or be deemed to have any fiduciary relationship
with any Lender. Any Lender that is a "CO-SYNDICATION AGENT,"
"CO-DOCUMENTATION AGENT," "MANAGING AGENT," or "CO-AGENT" may
voluntarily relinquish its title by giving written notice thereof to
Administrative Agent and Borrower. Upon such relinquishments, a
successor "CO-SYNDICATION AGENT," "CO-DOCUMENTATION AGENT," "MANAGING
AGENT," or "CO-AGENT" may be appointed upon the mutual agreement of
Borrower and Administrative Agent.
OBLIGATIONS SEVERAL. The obligations of
Lenders hereunder are several, and each Lender hereunder shall not be
responsible for the obligations of the other Lenders hereunder, nor
will the failure of one Lender to perform any of its obligations
hereunder relieve the other Lenders from the performance of their
respective obligations hereunder.
FINANCIAL ▇▇▇▇▇▇. To the extent any Lender
or any Affiliate of a Lender issues a Financial Hedge in accordance
with the requirements of the Loan Documents and accepts the benefits of
the Liens in the Collateral arising pursuant to the Collateral
Documents, such Lender (for itself and on behalf of any such
Affiliates) agrees (i) to appoint Bank of America, N.A., as its nominee
and agent, to act for and on behalf of such Lender or Affiliate thereof
in connection with the Collateral Documents and (ii) to be bound by the
terms of this SECTION 12; whereupon all references to "LENDER" in this
SECTION 12 and in the Collateral Documents shall include, on any date
of determination, any Lender or Affiliate of a Lender that is party to
a then-effective Financial Hedge which complies with the requirements
of the Loan Documents. Additionally, if the Obligation owed to any
Lender or Affiliate of a Lender consists SOLELY of Debt arising under a
Financial Hedge (such Lender or Affiliate being referred to in this
SECTION 12.12 as an "ISSUING LENDER"), then such Issuing Lender (by
accepting the benefits of any Collateral Documents) acknowledges and
agrees that pursuant to the Loan Documents and without notice to or
consent of such Issuing Lender: (i) Liens in the Collateral may be
released in whole or in part;
(ii) all Guaranties may be released; (iii) any Collateral Document may
be amended, modified, supplemented, or restated; and (iv) all or any
part of the Collateral may be permitted to secure other Debt.
SECTION MISCELLANEOUS.
HEADINGS. The headings, captions, and
arrangements used in any of the Loan Documents are, UNLESS specified
otherwise, for convenience only and shall not be deemed to limit,
amplify, or modify the terms of the Loan Documents, nor affect the
meaning thereof.
NONBUSINESS DAYS. In any case where any
payment or action is due under any Loan Document on a day which is not
a Business Day, such payment or action may be delayed until the
next-succeeding Business Day, but interest and fees shall continue to
accrue in respect of any payment to which it is applicable until such
payment is in fact made; PROVIDED THAT, if, in the case of any such
payment in respect of a Eurodollar Rate Borrowing, the next-succeeding
Business Day is in the next calendar month, then such payment shall be
made on the next-preceding Business Day.
COMMUNICATIONS. UNLESS specifically
otherwise provided, whenever any Loan Document requires or permits any
consent, approval, notice, request, or demand from one party to
another, such communication must be in writing (which may be by telex
or telecopy) to be effective and shall be deemed to have been given (a)
if by telex, when transmitted to the telex number, if any, for such
party, and the appropriate answer back is received, (b) if by telecopy,
when transmitted to the telecopy number for such party (and all such
communications sent by telecopy shall be confirmed promptly thereafter
by personal delivery or mailing in accordance with the provisions of
this section; PROVIDED THAT any requirement in this parenthetical shall
not affect the date on which such telecopy shall be deemed to have been
delivered), (c) if by mail, on the third Business Day after it is
enclosed in an envelope, properly addressed to such party, properly
stamped, sealed, and deposited in the appropriate official postal
service, or (d) if by any other means, when actually delivered to such
party. Until changed by notice pursuant hereto, the address (and telex
and telecopy numbers, if any) for Administrative Agent and each Lender,
Administrative Agent, and other Agents is set forth on SCHEDULE 2.1,
and for Borrower is the address set forth by Borrower's signature on
the signature page of this Agreement and for each Guarantor is the
address set forth by such Guarantor's signature on the signature page
of its Guaranty. A copy of each such communication to Administrative
Agent shall also be sent to ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Fax: 214/▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
FORM AND NUMBER OF DOCUMENTS. Each
agreement, document, instrument, or other writing to be furnished under
any provision of the Loan Documents must be in form and substance and
in such number of counterparts as may be reasonably satisfactory to
Administrative Agent and its counsel.
EXCEPTIONS TO COVENANTS. No Company shall
take any action or fail to take any action which is permitted as an
exception to any of the covenants contained in any Loan Document if
such action or omission would result in the breach of any other
covenant contained in any of the Loan Documents.
SURVIVAL. All covenants, agreements,
undertakings, representations, and warranties made in any of the Loan
Documents shall survive all closings under the Loan Documents and,
EXCEPT as otherwise indicated, shall not be affected by any
investigation made by
any party. All Rights of, and provisions relating to, reimbursement
and indemnification of Administrative Agent, any Agent, or any Lender
(and any other provision of the Loan Documents that expressly
provides for such survival) shall survive termination of this
Agreement and payment in full of the Obligation.
GOVERNING LAW. THE LOAN DOCUMENTS HAVE BEEN
ENTERED INTO PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
(EXCEPT TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION GOVERN THE
CREATION, PERFECTION, VALIDITY, OR ENFORCEMENT OF LIENS UNDER THE
COLLATERAL DOCUMENTS), AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT
AND INTERPRETATION OF THE LOAN DOCUMENTS.
INVALID PROVISIONS. If any provision in any
Loan Document is held to be illegal, invalid, or unenforceable, such
provision shall be fully severable; the appropriate Loan Document shall
be construed and enforced as if such provision had never comprised a
part thereof; and the remaining provisions thereof shall remain in full
force and effect and shall not be affected by such provision or by its
severance therefrom. Administrative Agent, Lenders, and each Company
party to such Loan Document agree to negotiate, in good faith, the
terms of a replacement provision as similar to the severed provision as
may be possible and be legal, valid, and enforceable.
ENTIRETY. THE RIGHTS AND OBLIGATIONS OF THE
COMPANIES, LENDERS, AND AGENTS SHALL BE DETERMINED SOLELY FROM WRITTEN
AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS
BETWEEN SUCH PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS.
THIS AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME) AND THE OTHER
WRITTEN LOAN DOCUMENTS EXECUTED BY ANY COMPANY, ANY LENDER, AND/OR ANY
AGENT, (TOGETHER WITH ALL COMMITMENT LETTERS AND FEE LETTERS ONLY AS
THEY RELATE TO THE PAYMENT OF FEES AFTER THE CLOSING DATE) REPRESENT
THE FINAL AGREEMENT BETWEEN THE COMPANIES, LENDERS, AND AGENTS, AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN SUCH PARTIES.
JURISDICTION; VENUE; SERVICE OF PROCESS;
JURY TRIAL. EACH COMPANY AND OTHER PARTY HERETO (INCLUDING EACH
GUARANTOR BY EXECUTION OF A GUARANTY), IN EACH CASE FOR ITSELF, ITS
SUCCESSORS AND ASSIGNS, HEREBY (A) IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE STATE (PURSUANT TO SECTION 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) AND FEDERAL COURTS LOCATED IN THE
BOROUGH OF MANHATTAN IN THE STATE OF NEW YORK, AND AGREES AND CONSENTS
THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS AND THE
OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY NEW YORK LAW, (B)
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS
AND THE OBLIGATION
BROUGHT IN ANY SUCH COURT, (C) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY
LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM, (D) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR
SERVICE OF PROCESS IN NEW YORK IN CONNECTION WITH ANY SUCH LITIGATION
AND TO DELIVER TO ADMINISTRATIVE AGENT EVIDENCE THEREOF, IF
REQUESTED, (E) IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, POSTAGE PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (F)
IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST ANY PARTY HERETO
ARISING OUT OF OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
OBLIGATION SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED COURTS, AND
(G) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF ANY LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED THEREBY. The scope of each of the foregoing waivers is
intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this
transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory
claims. The Companies and each other party to the Loan Documents
acknowledge that this waiver is a material inducement to the
agreement of each party hereto to enter into a business relationship,
that each has already relied on this waiver in entering into the Loan
Documents, and each will continue to rely on each of such waivers in
related future dealings. The Companies and each other party to the
Loan Documents warrant and represent that they have reviewed these
waivers with their legal counsel, and that they knowingly and
voluntarily agree to each such waiver following consultation with
legal counsel. THE WAIVERS IN THIS SECTION 13.10 ARE IRREVOCABLE,
MEANING THAT THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THESE WAIVERS SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR ANY OTHER LOAN
DOCUMENT. In the event of Litigation, this Agreement may be filed as
a written consent to a trial by the court.
AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS.
Except as otherwise specifically provided, (i) this
Agreement may only be amended, modified, or waived by an instrument in
writing executed jointly by Borrower and Required Lenders, and, in the
case of any matter affecting Administrative Agent (EXCEPT removal of
Administrative Agent as provided in SECTION 12) by Administrative
Agent, and may only be supplemented by documents delivered or to be
delivered in accordance with the express terms hereof, and (ii) the
other Loan Documents may only be the subject of an amendment,
modification, or waiver if Borrower and Required Lenders, and, in the
case of any matter affecting Administrative Agent (EXCEPT as set forth
above), Administrative Agent, have approved same.
Any amendment to any Loan Document, which purports to
(i) change the allocation of payments among the Facilities or
Subfacilities, (ii) decrease the amount of any mandatory or commitment
reduction required by SECTION 3.3, or (iii) change this SECTION
13.11(b), must be by an instrument in writing executed by Borrower and
by (A) the Term Loan A Lenders holding at least 66 2/3% of the Term
Loan A Principal Debt thereafter; (B) the Term Loan B Lenders holding
at least 66 2/3% of the Term Loan B Principal Debt; (C) the Term Loan C
Lenders holding at least 66 2/3% of the Term Loan C Principal Debt; and
(D) the Revolver Lenders holding at least 66 2/3% of the Revolver
Commitment or, if there is no remaining Revolver Commitment, 66 2/3% of
the Revolver Principal Debt.
Any amendment to or consent or waiver under any Loan
Document which purports to change the definition of "Change of Control"
as set forth in SECTION 1.1, to change the "Change of Control" default
provisions in SECTION 10.8, or to amend this SECTION 13.11(c), must be
by an instrument in writing and executed (or approved, as the case may
be) by Lenders holding 75% of either, (A) if the Revolver Commitment
remains in effect, the SUM of the Revolver Commitment PLUS the Term
Loan Principal Debt, or (B) if the Revolver Commitment has been
terminated, the Principal Debt.
Except as provided in SECTION 13.11(b), any amendment
to or consent or waiver under any Loan Document which purports to
accomplish any of the following must be by an instrument in writing
executed by Borrower and executed (or approved, as the case may be) by
each Lender affected thereby, and, in the case of any matter affecting
Administrative Agent, by Administrative Agent: (i) postpones or delays
any date fixed by the Loan Documents for any payment (OTHER THAN
mandatory prepayments) of all or any part of the Obligation payable to
such Lender or Administrative Agent; (ii) reduces the interest rate or
decreases the amount of any payment of principal, interest, fees, or
other sums payable to Administrative Agent or any such Lender hereunder
(EXCEPT such reductions as are contemplated by this Agreement); (iii)
changes the definition of "REQUIRED LENDERS," this SECTION 13.11(d), or
any other provision of the Loan Documents that requires the unanimous
consent of Lenders; (iv) changes the order of application of any
payment or prepayment set forth in SECTIONS 3.3 and 3.12 in any manner
that materially affects such Lender or Administrative Agent; (v) EXCEPT
as otherwise permitted by any Loan Document (including, without
limitation, SECTION 6.4), waives compliance with, amends, or releases
all or substantially all of the Guaranties; (vi) EXCEPT as contemplated
in SECTION 6.4, releases all or substantially all of the Collateral for
the Obligation or permits the creation, incurrence, assumption, or
existence of any Lien on all or substantially all of the Collateral to
secure any obligations, OTHER THAN Liens securing the Obligation and
Permitted Liens; or (vii) changes this CLAUSE (d) or any other matter
specifically requiring the consent of all Lenders hereunder. Without
the consent of such Lender, no Lender's Committed Sum or Commitment
Percentage may be increased.
Any conflict or ambiguity between the terms and
provisions of this Agreement and terms and provisions in any other Loan
Document shall be controlled by the terms and provisions of this
Agreement.
No course of dealing nor any failure or delay by
Administrative Agent, any Lender, or any of their respective
Representatives with respect to exercising any Right of Administrative
Agent or any Lender hereunder shall operate as a waiver thereof. A
waiver must be in writing and signed by Administrative Agent and
Required Lenders (or by all Lenders, if required hereunder) to be
effective, and such waiver will be effective only in the specific
instance and for the specific purpose for which it is given.
MULTIPLE COUNTERPARTS. The Loan Documents
may be executed in a number of identical counterparts, each of which
shall be deemed an original for all purposes and all of which
constitute, collectively, one agreement; but, in making proof of any
Loan Document, it shall not be necessary to produce or account for more
than one such counterpart. It is not necessary that each Lender execute
the same counterpart SO LONG AS identical counterparts are executed by
Borrower, Parent, each Lender, and Administrative Agent. This Agreement
shall become effective when counterparts hereof shall have been
executed and delivered to Administrative Agent by each Lender,
Administrative Agent, and Borrower, or, when
Administrative Agent shall have received telecopied, telexed, or other
evidence satisfactory to it that such party has executed and is
delivering to Administrative Agent a counterpart hereof.
SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS.
This Agreement shall be binding upon, and inure to
the benefit of the parties hereto and their respective successors and
assigns, EXCEPT THAT (i) Borrower may not, directly or indirectly,
assign or transfer, or attempt to assign or transfer, any of its
Rights, duties or obligations under any Loan Documents without the
express written consent of all Lenders, and (ii) EXCEPT as permitted
under this Section, no Lender may transfer, pledge, assign, sell any
participation in, or otherwise encumber its portion of the Obligation.
Each Lender may assign to one or more Eligible
Assignees all or a portion of its Rights and obligations under the Loan
Documents (including, without limitation, all or a portion of its
Borrowings and its Notes [to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Note or Notes]); PROVIDED, HOWEVER,
that:
27) Each such assignment shall be to an
Eligible Assignee;
28) Except in the case of an assignment to
another Lender, an Affiliate of any Lender, or an Approved
Fund of any Lender, or in the case of an assignment of all
of a Lender's Rights and obligations under the Loan
Documents, any such partial assignment under any Facility
shall not be less than the following amounts for the
Facility indicated, UNLESS Administrative Agent and, UNLESS
a Default or Potential Default has occurred and is
continuing, Borrower consent thereto (in their sole
discretion) in writing which may be evidenced by their
acceptance and execution of the related Assignment and
Acceptance Agreement):
-----------------------------------------------------------------------
FACILITY MINIMUM ASSIGNMENT
-----------------------------------------------------------------------
Revolver Facility $2,500,000 (inclusive of any
concurrent assignments under the Term
Loan A Facility or the Term Loan B
Facility by the assigning Lender to the
same assignee)
-----------------------------------------------------------------------
Term Loan A $2,500,000 (inclusive of any
concurrent assignments under the Term
Revolver Facility or the Term Loan B
Facility by the assigning Lender to the
same assignee)
-----------------------------------------------------------------------
Term Loan B $1,000,000
-----------------------------------------------------------------------
Term Loan C $1,000,000
-----------------------------------------------------------------------
; PROVIDED THAT, no partial assignment for any Facility
(including any assignment among Lenders) may result in any
Lender holding less than $500,000 in any Facility;
29) Each such assignment by a Lender shall be
of a proportionate part of all of the assigning Lender's
Rights and obligations under this Agreement and the Notes
(to the extent any Principal Debt owed to such assigning
Lender is evidenced by a Note or Notes), except that this
CLAUSE (iii) shall not be construed to prohibit the
assignment of a
proportionate part of all of the assigning Lender's Rights and
obligations in respect of one Facility;
30) The parties to such assignment shall
execute and deliver to Administrative Agent for its
acceptance an Assignment and Acceptance Agreement
substantially in the form of EXHIBIT F, TOGETHER WITH any
Notes (to the extent any Principal Debt owed to such
assigning Lender is evidenced by a Note or Notes) subject to
such assignment and a processing fee of $3,500 (or $2,500
for an assignment between Lenders) UNLESS such fee is waived
or reduced by Administrative Agent; and
31) So long as any Lender is an Agent (OTHER
THAN a Co-Agent or Managing Agent) under this Agreement,
such Lender (or an Affiliate of such Lender) shall retain an
economic interest in the Loan Documents, will not assign all
of its Rights, duties, or obligations under the Loan
Documents, EXCEPT to an Affiliate of such Lender, and will
not enter into any Assignment and Acceptance Agreement that
would have the effect of such Lender assigning all of its
Rights, duties, or obligations under the Loan Documents to
any Person OTHER THAN an Affiliate of such Lender UNLESS
such Agent has relinquished such title in accordance with
SECTION 12.1 (with respect to Administrative Agent) or
SECTION 12.10 (with respect to the other Agents).
Upon execution, delivery, acceptance, and recordation of such
Assignment and Acceptance Agreement, the assignee thereunder shall be a
party hereto and, to the extent of such assignment, have the
obligations, Rights, and benefits of a Lender under the Loan Documents
and the assigning Lender shall, to the extent of such assignment,
relinquish its Rights and be released from its obligations under the
Loan Documents. Upon the consummation of any assignment pursuant to
this Section, but only upon the request of the assignor or assignee
made through Administrative Agent, Borrower shall issue appropriate
Notes to the assignor and the assignee, reflecting such Assignment and
Acceptance. If the assignee is not incorporated under the laws of the
United States of America or a state thereof, it shall deliver to
Borrower and Administrative Agent certification as to exemption from
deduction or withholding of Taxes in accordance with SECTION 4.6.
Administrative Agent (acting solely for this
administrative purpose as an agent of Borrower) shall maintain at its
address referred to in SECTION 13.3 a copy of each Assignment and
Acceptance Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of Lenders and the
Commitment Percentage, and principal amount of the Borrowings owing to,
each Lender from time to time (the "REGISTER"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and Borrower, Administrative Agent, and the Lenders may
treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Documents. The Register shall be
available for inspection by Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice. Upon the
consummation of any assignment in accordance with this SECTION 13.13,
SCHEDULE 2.1 shall automatically be deemed amended (to the extent
required) by Administrative Agent to reflect the name, address, and,
where appropriate, the respective Committed Sums under the Facilities
of the assignor and assignee. No assignment shall be effective until
recorded in the Register as provided in this SECTION 13.13(c).
Upon its receipt of an Assignment and Acceptance
Agreement executed by the parties thereto, TOGETHER WITH any Notes (to
the extent any Principal Debt owed to such assigning Lender is
evidenced by a Note or Notes) subject to such assignment and payment of
the processing fee, Administrative Agent shall, if such Assignment and
Acceptance has been
completed and is in substantially the form of EXHIBIT F, (i) accept
such Assignment and Acceptance Agreement, (ii) record the information
contained therein in the Register, and (iii) give prompt notice thereof
to the parties thereto.
Subject to the provisions of this Section and in
accordance with applicable Law, any Lender may, in the ordinary course
of its commercial banking business and in accordance with applicable
Law, at any time sell to one or more Persons (OTHER THAN any Company or
any Affiliate of any Company) (each a "PARTICIPANT") participating
interests in its portion of the Obligation. In the event of any such
sale to a Participant, (i) such Lender shall remain a "LENDER" under
the Loan Documents and the Participant shall not constitute a "LENDER"
hereunder, (ii) such Lender's obligations under the Loan Documents
shall remain unchanged, (iii) such Lender shall remain solely
responsible for the performance thereof, (iv) such Lender shall remain
the holder of its share of the Principal Debt for all purposes under
the Loan Documents, (v) Borrower and Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's Rights and obligations under the Loan Documents, and
(vi) such Lender shall be solely responsible for any withholding Taxes
or any filing or reporting requirements relating to such participation
and shall hold Borrower and Administrative Agent and their respective
successors, permitted assigns, officers, directors, employees, agents,
and representatives harmless against the same. Participants shall have
no Rights under the Loan Documents, OTHER THAN certain voting Rights as
provided below. Subject to the following, each Lender shall be entitled
to obtain (on behalf of its Participants) the benefits of SECTION 4
with respect to all participations in its part of the Obligation
outstanding from time to time, SO LONG AS Borrower shall not be
obligated to pay any amount in excess of the amount that would be due
to such Lender under SECTION 4 calculated as though no participations
have been made. No Lender shall sell any participating interest under
which the Participant shall have any Rights to approve any amendment,
modification, or waiver of any Loan Document, EXCEPT to the extent such
amendment, modification, or waiver extends the due date for payment of
any amount in respect of principal (OTHER THAN mandatory prepayments),
interest, or fees due under the Loan Documents, reduces the interest
rate or the amount of principal or fees applicable to the Obligation
(EXCEPT such reductions as are contemplated by the Loan Documents), or
releases all or substantially all of the Guaranties or all or
substantially all of the Collateral for the Obligation under the Loan
Documents (EXCEPT such releases of Guaranties or Collateral as are
contemplated in SECTION 6.4); PROVIDED THAT, in those cases where a
Participant is entitled to the benefits of SECTION 4 or a Lender grants
Rights to its Participants to approve amendments to or waivers of the
Loan Documents respecting the matters previously described in this
sentence, such Lender must include a voting mechanism in the relevant
participation agreement or agreements, as the case may be, whereby a
majority of such Lender's portion of the Obligation (whether held by
such Lender or Participant) shall control the vote for all of such
Lender's portion of the Obligation. Except in the case of the sale of a
participating interest to another Lender, the relevant participation
agreement shall not permit the Participant to transfer, pledge, assign,
sell participations in, or otherwise encumber its portion of the
Obligation, UNLESS the consent of the transferring Lender (which
consent will not be unreasonably withheld) has been obtained.
Notwithstanding any other provision set forth in this
Agreement, any Lender may, without notice to, or consent of Borrower or
Administrative Agent, at any time assign and pledge all or any portion
of its Borrowings and its Notes (to the extent any Principal Debt owed
to such assigning Lender is evidenced by a Note or Notes) to any
Federal Reserve Bank as collateral security pursuant to REGULATION A
and any OPERATING CIRCULAR issued by such Federal Reserve Bank or any
Lender which is a fund may pledge all or any portion of its Borrowings
and its Notes (to the extent any Principal Debt owed to such assigning
Lender is evidenced by a Note or Notes) to any trustee or to any other
representative of holders of obligations owed or securities issued by
such
fund as security for such obligations or securities; PROVIDED THAT any
transfer to any Person upon the enforcement of such pledge or security
interest may only be made subject to this SECTION 13.13. No such
assignment shall release the assigning Lender from its obligations
hereunder.
Any Lender may furnish any information concerning the
Companies in the possession of such Lender from time to time to
Eligible Assignees and Participants (including prospective Eligible
Assignees and Participants) and to counterparties under a Financial
Hedge issued by a Lender or an Affiliate of a Lender to the extent
permitted by the Loan Documents.
CONFIDENTIALITY. Administrative Agent and
each Lender (each, a "LENDING PARTY") agrees to keep confidential any
information furnished or made available to it by the Companies in the
course of inspections conducted pursuant to SECTION 9.4 if such
information has been marked "confidential"; PROVIDED THAT nothing
herein shall prevent any Lending Party from disclosing such information
(a) to any other Lending Party or any Affiliate of any Lending Party,
or any officer, director, employee, agent, or advisor of any Lending
Party or Affiliate of any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility
provided herein, (c) as required by any Law, (d) upon the order of any
Governmental Authority, (e) upon the request or demand of any
Governmental Authority, (f) that is or becomes available to the public
or that is or becomes available to any Lending Party OTHER THAN as a
result of a disclosure by any Lending Party prohibited by this
Agreement, (g) in connection with any litigation to which such Lending
Party or any of its Affiliates may be a party, (h) to the extent
necessary in connection with the exercise of any remedy under the Loan
Documents, (i) subject to provisions substantially similar to those
contained in this Section, to any actual or proposed Participant or
Assignee, (j) to any direct or indirect contractual counterparty in
swap agreements or such contractual counterparty's professional
advisor (SO LONG AS such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the
provisions of this SECTION 13.14, and (k) to the National Association
of Insurance Commissioners or any similar organization or any
nationally recognized rating agency that requires access to
information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender.
DISCHARGE ONLY UPON PAYMENT IN FULL;
REINSTATEMENT IN CERTAIN CIRCUMSTANCES. The obligations of each Company
under the Loan Documents shall remain in full force and effect until
termination of the Total Commitment, payment in full of the Principal
Debt and of all interest, fees, and other amounts of the Obligation
then due and owing, and expiration of all LCs, EXCEPT that SECTIONS 4,
11, and 13, and any other provisions under the Loan Documents expressly
intended to survive by the terms hereof or by the terms of the
applicable Loan Documents, shall survive such termination. If at any
time any payment of the principal of or interest on any Note or any
other amount payable by any Company under any Loan Document is
rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy, or reorganization of such Company or otherwise,
the obligations of each Company under the Loan Documents with respect
to such payment shall be reinstated as though such payment had been due
but not made at such time.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among ACC Acquisition Co. (including it successor by
merger, American Cellular Corporation), as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
Attest: ACC ACQUISITION CO. (including its
successor by merger, American Cellular
Corporation), BORROWER
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------ -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman of Board/Chief
Financial Officer
Address: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Address: Bank of America, BANK OF AMERICA, N.A.,
N.A. as ADMINISTRATIVE AGENT and as a LENDER
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among ACC Acquisition Co. (including it successor by
merger, American Cellular Corporation), as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
Parent hereby acknowledges that it has reviewed this Credit
Agreement and agrees that (i) the representations and covenants
contained herein apply to Parent and (ii) Parent shall cause the
Companies to comply with the Loan Documents and shall cause Manager to
operate and manage the Companies in compliance with the Loan Documents.
ACC ACQUISITION, LLC, PARENT, BY
ITS MEMBERS
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. AT&T WIRELESS SERVICES JV CO.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among ACC Acquisition Co. (including it successor by
merger, American Cellular Corporation), as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
Address: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Extension ▇▇▇▇▇▇ ▇▇ COMPANY
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇ -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among ACC Acquisition Co. (including it successor by
merger, American Cellular Corporation), as Borrower, Bank of America, N.A., as
Administrative Agent, and certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
