|
<PAGE>
Exhibit 10.1
EXECUTION COPY
================================================================================
Published CUSIP Number:____
CREDIT AGREEMENT
Dated as of January 10, 2005
among
CRICKET COMMUNICATIONS, INC.,
as the Borrower,
LEAP WIRELESS INTERNATIONAL, INC.,
as Holdings,
BANK OF AMERICA, N.A.,
as Administrative Agent and L/C Issuer,
GOLDMAN SACHS CREDIT PARTNERS L.P.
and
CREDIT SUISSE FIRST BOSTON
as Documentation Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC and
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Joint Lead Arrangers
and
BANC OF AMERICA SECURITIES LLC,
GOLDMAN SACHS CREDIT PARTNERS L.P. and CREDIT SUISSE FIRST
BOSTON,
as Joint Book Managers
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
------- ----
Article I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C> <C>
1.01 Defined
Terms.........................................................................................
1
1.02 Other Interpretive
Provisions.........................................................................
31
1.03 Accounting
Terms......................................................................................
32
1.04
Rounding..............................................................................................
32
1.05 Times of
Day..........................................................................................
32
1.06 Letter of Credit
Amounts..............................................................................
32
1.07 Currency Equivalents
Generally........................................................................
32
Article II
THE COMMITMENTS and Credit Extensions
2.01 The
Loans.............................................................................................
33
2.02 Borrowings, Conversions and Continuations of
Loans.................................................... 33
2.03 Letters of
Credit.....................................................................................
35
2.04
Prepayments...........................................................................................
42
2.05 Termination or Reduction of
Commitments...............................................................
46
2.06 Repayment of
Loans....................................................................................
48
2.07
Interest..............................................................................................
48
2.08
Fees..................................................................................................
49
2.09 Computation of Interest and
Fees......................................................................
50
2.10 Evidence of
Debt......................................................................................
50
2.11 Payments Generally; Administrative Agent's
Clawback................................................... 51
2.12 Sharing of Payments by
Lenders........................................................................
53
2.13 Increase in
Commitments...............................................................................
53
Article III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01
Taxes.................................................................................................
55
3.02
Illegality............................................................................................
57
3.03 Inability to Determine
Rates..........................................................................
58
3.04 Increased Costs; Reserves on Eurodollar Rate
Loans.................................................... 58
3.05 Compensation for
Losses...............................................................................
60
3.06 Mitigation Obligations; Replacement of
Lenders........................................................
60
3.07
Survival..............................................................................................
61
Article IV
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
4.01 Conditions of Initial Credit
Extension................................................................
61
4.02 Conditions to all Credit
Extensions...................................................................
66
</TABLE>
ii
<PAGE>
<TABLE>
ARTICLE V
REPRESENTATIONS AND WARRANTIES
<S> <C> <C>
5.01 Existence, Qualification and Power; Compliance with
Laws.............................................. 67
5.02 Authorization; No
Contravention.......................................................................
67
5.03 Governmental Authorization; Other
Consents............................................................
67
5.04 Binding
Effect........................................................................................
68
5.05 Financial Statements; No Material Adverse
Effect...................................................... 68
5.06
Litigation............................................................................................
69
5.07 No
Default............................................................................................
69
5.08 Ownership of Property; Liens;
Investments.............................................................
69
5.09 Environmental
Compliance..............................................................................
70
5.10
Insurance.............................................................................................
70
5.11
Taxes.................................................................................................
70
5.12 ERISA
Compliance......................................................................................
70
5.13 Subsidiaries; Equity Interests; Loan
Parties..........................................................
71
5.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act........................ 71
5.15
Disclosure............................................................................................
71
5.16 Compliance with
Laws..................................................................................
72
5.17 Intellectual Property; Licenses, Etc.
................................................................
72
5.18
Solvency..............................................................................................
72
ARTICLE VI
AFFIRMATIVE COVENANTS
6.01 Financial
Statements..................................................................................
73
6.02 Certificates; Other
Information.......................................................................
74
6.03
Notices...............................................................................................
76
6.04 Payment of
Obligations................................................................................
77
6.05 Preservation of Existence, Etc.
......................................................................
77
6.06 Maintenance of
Properties.............................................................................
77
6.07 Maintenance of
Insurance..............................................................................
77
6.08 Compliance with
Laws..................................................................................
77
6.09 Books and
Records.....................................................................................
77
6.10 Inspection
Rights.....................................................................................
78
6.11 Use of
Proceeds.......................................................................................
78
6.12 Covenant to Guarantee Obligations and Give
Security................................................... 78
6.13 Compliance with Environmental
Laws....................................................................
81
6.14 Provision and Preparation of Environmental
Reports.................................................... 81
6.15 Further
Assurances....................................................................................
82
6.16 Compliance with Terms of
Leaseholds...................................................................
82
6.17 Interest Rate
Hedging.................................................................................
82
6.18 Lien
Searches.........................................................................................
82
6.19 Cash Collateral
Accounts..............................................................................
83
6.20 Material
Contracts....................................................................................
83
6.21 Existing
Notes........................................................................................
83
6.22 Designated Entities and Disqualified Subsidiaries
Separateness........................................ 83
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
6.23 Holding
Company.......................................................................................
85
ARTICLE VII
NEGATIVE COVENANTS
7.01
Liens.................................................................................................
85
7.02
Indebtedness..........................................................................................
87
7.03
Investments...........................................................................................
90
7.04 Fundamental
Changes...................................................................................
94
7.05
Dispositions..........................................................................................
94
7.06 Restricted
Payments...................................................................................
96
7.07 Change in Nature of
Business..........................................................................
97
7.08 Transactions with
Affiliates..........................................................................
97
7.09 Burdensome
Agreements.................................................................................
97
7.10 Financial
Covenants...................................................................................
98
7.11 Use of
Proceeds.......................................................................................
98
7.12 Amendments of Organization
Documents..................................................................
98
7.13 Accounting
Changes....................................................................................
98
7.14 Prepayments, Etc., of
Indebtedness....................................................................
98
7.15 Partnerships, Etc.
...................................................................................
99
7.16 Speculative
Transactions..............................................................................
99
7.17 Formation of
Subsidiaries.............................................................................
99
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of
Default.....................................................................................
99
8.02 Remedies upon Event of
Default........................................................................
101
8.03 Application of
Funds..................................................................................
102
ARTICLE IX
ADMINISTRATIVE AGENT
9.01 Appointment and
Authority.............................................................................
103
9.02 Rights as a
Lender....................................................................................
104
9.03 Exculpatory
Provisions................................................................................
104
9.04 Reliance by Administrative
Agent......................................................................
105
9.05 Delegation of
Duties..................................................................................
105
9.06 Resignation of Administrative
Agent...................................................................
105
9.07 Non-Reliance on Administrative Agent and Other
Lenders................................................ 106
9.08 No Other Duties, Etc.
................................................................................
106
9.09 Administrative Agent May File Proofs of
Claim.........................................................
107
9.10 Collateral and Guaranty
Matters.......................................................................
107
ARTICLE X
MISCELLANEOUS
10.01 Amendments,
Etc.......................................................................................
108
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
10.02 Notices and Other Communications; Facsimile
Copies.................................................... 110
10.03 No Waiver; Cumulative
Remedies........................................................................
111
10.04 Expenses; Indemnity; Damage
Waiver....................................................................
111
10.05 Payments Set
Aside....................................................................................
113
10.06 Successors and
Assigns................................................................................
113
10.07 Treatment of Certain Information;
Confidentiality.....................................................
117
10.08 Right of
Setoff.......................................................................................
118
10.09 Interest Rate
Limitation..............................................................................
119
10.10 Counterparts; Integration;
Effectiveness..............................................................
119
10.11 Survival of Representations and
Warranties............................................................
119
10.12
Severability..........................................................................................
120
10.13 Replacement of
Lenders................................................................................
120
10.14 Governing Law; Jurisdiction; Etc.
....................................................................
121
10.15 Waiver of Jury
Trial..................................................................................
122
10.16 USA PATRIOT Act
Notice................................................................................
122
SIGNATURES.....................................................................................................
S-1
</TABLE>
v
<PAGE>
SCHEDULES
I Guarantors
2.01 Commitments and Applicable Percentages
5.05 Supplement to Interim Financial Statements
5.06 Disclosed Litigation
5.08(b) Existing Liens
5.08(c) Owned Real Property
5.08(d) Existing Investments
5.11 Certain Tax Information
5.13 Subsidiaries and Other Equity Investments; Loan Parties
5.17 Intellectual Property Matters
6.12 Guarantors
10.02 Administrative Agent's Office, Certain Addresses for
Notices
EXHIBITS
Form of
A Committed Loan Notice
C-1 Term Note
C-2 Revolving Credit Note
D Compliance Certificate
E Assignment and Assumption
F-1 Parent Guaranty
F-2 Subsidiary Guaranty
G Security Agreement
I Intellectual Property Security Agreement
K-1 Opinion Matters - Counsel to Loan Parties
K-2 Opinion Matters - Local Counsel to Loan Parties
vi
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT ("AGREEMENT") is entered into as of
January
10, 2005, among CRICKET COMMUNICATIONS, INC., a Delaware
corporation (the
"BORROWER"), LEAP WIRELESS INTERNATIONAL, INC., a Delaware
corporation
("HOLDINGS"), each lender from time to time party hereto
(collectively, the
"LENDERS" and individually, a "LENDER"), and BANK OF AMERICA,
N.A., as
Administrative Agent and L/C Issuer.
Pursuant to an order dated October 22, 2003 (the
"CONFIRMATION
ORDER"), the United States Bankruptcy Court for the Southern
District of
California (the "BANKRUPTCY COURT") confirmed the Fifth Amended
Joint Plan of
Reorganization of Holdings and its subsidiaries dated July 30,
2003 (the "PLAN
OF REORGANIZATION"). Pursuant to the Plan of Reorganization, (i)
Holdings became
the direct parent of the Borrower, (ii) approximately
$77,000,000 of
indebtedness, which has since be repaid in part leaving an
outstanding balance
of approximately $41,000,000 (including accrued interest) (the
"FCC
INDEBTEDNESS") owed to the Federal Communications Commission
(the "FCC") by
certain Subsidiaries of Holdings was reinstated as an obligation
of such
Subsidiaries and such Subsidiaries were reorganized into
Subsidiaries of the
Borrower and (iii) $350,000,000 in aggregate principal amount of
13% Senior
Secured Pay-in-Kind Notes of the Borrower (the "EXISTING NOTES")
was issued to
the holders of certain claims against Holdings, the Borrower and
its
Subsidiaries.
The Borrower desires to discharge the indenture under which
the
Existing Notes were issued, to redeem the Existing Notes in
accordance with the
terms of such Indenture and to pay all interest and premium
associated with such
redemption (collectively, the "NOTES DISCHARGE") and to repay
the outstanding
FCC Indebtedness (the "FCC REPAYMENT"). In addition the Borrower
desires to
obtain financing for ongoing working capital, acquisitions and
general corporate
purposes of Holdings and its Subsidiaries (as hereinafter
defined).
The Borrower has requested that the Lenders provide a
revolving
credit facility and a term loan B facility, and the Lenders have
indicated their
willingness to lend and their willingness for the L/C Issuers to
issue Letters
of Credit, and the L/C Issuers have indicated their willingness
to so issue
Letters of Credit, in each case, on the terms and subject to the
conditions set
forth herein.
In consideration of the mutual covenants and agreements
herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following
terms
shall have the meanings set forth below:
"ADMINISTRATIVE AGENT" means Bank of America in its capacity
as
administrative agent under any of the Loan Documents, or any
successor or
replacement administrative agent.
Project Jump Credit Agreement
<PAGE>
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative
Agent's
address and, as appropriate, account as set forth on Schedule
10.02, or such
other address or account as the Administrative Agent may from
time to time
notify to the Borrower and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire
in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person
that
directly, or indirectly through one or more intermediaries,
Controls or is
Controlled by or is under common Control with the Person
specified.
"AGENTS" means, collectively, the Administrative Agent and
the
Documentation Agents.
"AGGREGATE COMMITMENTS" means the Commitments of all the
Lenders.
"AGGREGATE CREDIT EXPOSURES" means, at any time, in respect of
(i)
the Term B Facility, the aggregate amount of the Term B Loans
outstanding at
such time and (ii) the Revolving Credit Facility, the sum of (x)
the unused
portion of the Revolving Credit Facility at such time and (y)
the Total
Revolving Credit Outstandings at such time.
"AGREEMENT" means this Credit Agreement and the Schedules
and
Exhibits hereto.
"AGREEMENT VALUE" means, with respect to each Swap Contract on
any
date of determination, an amount equal to the greater of:
(a) (i) in the case of any Swap Contract documented pursuant to
the
ISDA Master Agreement, the amount, if any, that would be payable
by any of
the Loan Parties or any of their Subsidiaries to its
counterparty to such
Swap Contract, as if (A) such Swap Contract was being terminated
early on
such date of determination, (B) such Loan Party or such
Subsidiary, as the
case may be, was the sole Affected Party (as defined in the
applicable
Master Agreement) and (C) the Administrative Agent was the sole
party
determining such payment amount (with the Administrative Agent
making such
determination pursuant to the provisions of the form of Master
Agreement);
or (ii) in the case of a Swap Contract traded on an exchange,
the
mark-to-market value of such Swap Contract, which will be the
unrealized
loss on such Swap Contract to the Loan Party or the Subsidiary
of a Loan
Party party to such Swap Contract (determined by the
Administrative Agent
based on the settlement price of such Swap Contract on such
date); or
(b) in all other cases, the mark-to-market value of such
Swap
Contract, which will be the unrealized loss on such Swap
Contract to the
Loan Party or the Subsidiary of a Loan Party party to such Swap
Contract
(determined by the Administrative Agent based on the amount, if
any, by
which (i) the present value of the future cash flows to be paid
by such
Loan Party or such Subsidiary of a Loan Party, as the case may
be, exceeds
(ii) the present value of the future cash flows to be received
by such
Loan Party or such Subsidiary of a Loan Party pursuant to such
Swap
Contract).
2
<PAGE>
"APPLICABLE FEE RATE" means (a) at any time that the sum of (x)
the
Total Outstandings in respect of the Revolving Credit Facility
and (y) the
aggregate amount of reductions of the Revolving Credit
Commitments pursuant to
Sections 2.05(a), (b) or (d) exceeds 50% of the aggregate amount
of the
Revolving Credit Commitments as of the Closing Date, 0.75% per
annum and (b) at
all other times, 1.00% per annum.
"APPLICABLE PERCENTAGE" means (i) in respect of the Term B
Facility,
with respect to any Term B Lender at any time, the percentage
(carried out to
the ninth decimal place) of the Term B Facility represented by
(x) on or prior
to the Closing Date, such Term B Lender's Term B Commitment at
such time and (y)
thereafter, the principal amount of such Term B Lender's Term B
Loans at such
time and (ii) in respect of the Revolving Credit Facility, with
respect to any
Revolving Credit Lender at any time, the percentage (carried out
to the ninth
decimal place) of the Revolving Credit Facility represented by
such Revolving
Credit Lender's Revolving Credit Commitment at such time. If the
Revolving
Credit Commitment of each Revolving Credit Lender to make
Revolving Credit Loans
and the obligation of the L/C Issuer to make L/C Credit
Extensions have been
terminated pursuant to Section 8.02, or if the Revolving Credit
Commitments have
expired, then the Applicable Percentage of each Revolving Credit
Lender in
respect of the Revolving Credit Facility shall be determined
based on the
Applicable Percentage of such Revolving Credit Lender in respect
of the
Revolving Credit Facility most recently in effect, giving effect
to any
subsequent assignments. The initial Applicable Percentage of
each Lender in
respect of each Facility is set forth opposite the name of such
Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender
becomes a party hereto, as applicable.
"APPLICABLE RATE" means (a) in respect of the Term B Facility,
(i)
2.50% per annum for Eurodollar Rate Loans, and (ii) 1.50% per
annum for Base
Rate Loans, in each case as the same may be increased pursuant
to Section
2.13(g), and (b) in respect of the Revolving Credit Facility,
(x) until the date
which is six months after the Closing Date, (i) 2.50% per annum
for Eurodollar
Rate Loans and (ii) 1.50% per annum for Base Rate Loans, in each
case as the
same may be increased pursuant to Section 2.13(g), and (y) from
and after the
date which is six months after the Closing Date, the following
percentages per
annum, based upon the Consolidated Leverage Ratio as set forth
in the most
recent Compliance Certificate received by the Administrative
Agent pursuant to
Section 6.02(b), in each case as the same may be increased
pursuant to Section
2.13(g):
Applicable Rate
<TABLE>
<CAPTION>
Eurodollar
Rate +
Pricing Consolidated Letters of
Level Leverage Ratio Credit Base Rate
------- --------------------------- ---------- ---------
<S> <C> <C> <C>
1 <2.00:1 2.25% 1.25%
2 > or = 2.00:1 but <3.00:1 2.50% 1.50%
3 > or = 3.00:1 but <4.00:1 2.75% 1.75%
4 > or = 4.00:1 but <5.00:1 3.00% 2.00%
5 > or = 5.00:1 3.25% 2.25%
</TABLE>
3
<PAGE>
Any increase or decrease in the Applicable Rate resulting from
a
change in the Consolidated Leverage Ratio shall become effective
as of the first
Business Day immediately following the date a Compliance
Certificate is
delivered pursuant to Section 6.02(b); provided, however, that
if a Compliance
Certificate is not delivered when due in accordance with such
Section, then
Pricing Level 5 shall apply as of the first Business Day after
the date on which
such Compliance Certificate was required to have been delivered
until the first
Business Day immediately following delivery of a Compliance
Certificate. The
"Applicable Rate" in respect of any Incremental Facility shall
be as agreed by
the Borrower and the Lenders having Commitments under such
Incremental Facility,
subject to Section 2.13(g).
"APPLICABLE REVOLVING CREDIT PERCENTAGE" means with respect to
any
Revolving Credit Lender at any time, such Revolving Credit
Lender's Applicable
Percentage in respect of the Revolving Credit Facility at such
time.
"APPROPRIATE LENDER" means, at any time, (a) with respect to
the
Term B Facility or the Revolving Credit Facility, a Lender that
has a Commitment
with respect to such Facility at such time and (b) with respect
to the Letter of
Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of
Credit have been
issued pursuant to Section 2.03(a), the Revolving Credit
Lenders.
"APPROVED FUND" means any Fund that is administered or managed
by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
an Affiliate of
an entity that administers or manages a Lender.
"ARRANGEMENT FEE LETTER" means the letter agreement, dated
November
5, 2004, among Holdings, the Borrower, the Joint Lead Arrangers
and the Joint
Book Managers.
"ASSIGNMENT AND ASSUMPTION" means an assignment and
assumption
entered into by a Lender and an Eligible Assignee (with the
consent of any party
whose consent is required by Section 10.06(b)), and accepted by
the
Administrative Agent, in substantially the form of Exhibit E or
any other form
approved by the Administrative Agent.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, (a) in respect
of
any Capitalized Lease of any Person, the capitalized amount
thereof that would
appear on a balance sheet of such Person prepared as of such
date in accordance
with GAAP, (b) in respect of any Synthetic Lease Obligation, the
capitalized
amount of the remaining lease or similar payments under the
relevant lease or
other applicable agreement or instrument that would appear on a
balance sheet of
such Person prepared as of such date in accordance with GAAP if
such lease or
other agreement or instrument were accounted for as a
Capitalized Lease and (c)
all Synthetic Debt of such Person.
"AUDITED FINANCIAL STATEMENTS" means the audited
consolidated
balance sheet of Holdings and its Subsidiaries for the fiscal
year ended
December 31, 2003, and the related consolidated statements of
income or
operations, shareholders' equity and cash flows for such fiscal
year of Holdings
and its Subsidiaries, including the notes thereto.
"AVAILABILITY PERIOD" means, in respect of the Revolving
Credit
Facility, the period from and including the Closing Date to the
earliest of (i)
the Maturity Date for the Revolving Credit Facility, (ii) the
date of
termination in whole of the Revolving Credit Commitments
pursuant to Section
2.05, and (iii) the date of termination in whole of the
4
<PAGE>
commitment of each Revolving Credit Lender to make Revolving
Credit Loans and of
the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to
Section 8.02.
"BANK OF AMERICA" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its
successors.
"BASE RATE" means for any day a fluctuating rate per annum equal
to
the higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b)
the rate of
interest in effect for such day as publicly announced from time
to time by Bank
of America as its "prime rate." The "prime rate" is a rate set
by Bank of
America based upon various factors including Bank of America's
costs and desired
return, general economic conditions and other factors, and is
used as a
reference point for pricing some loans, which may be priced at,
above, or below
such announced rate. Any change in such rate announced by Bank
of America shall
take effect at the opening of business on the day specified in
the public
announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest based on the
Base
Rate.
"BORROWER" has the meaning specified in the introductory
paragraph
hereto.
"BORROWING" means a Revolving Credit Borrowing or a Term B
Borrowing, as the context may require.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other
day on which commercial banks are authorized to close under the
Laws of, or are
in fact closed in, the state where the Administrative Agent's
Office is located
and, if such day relates to any Eurodollar Rate Loan, means any
such day on
which dealings in Dollar deposits are conducted by and between
banks in the
London interbank eurodollar market.
"CAPITAL EXPENDITURES" means, with respect to any Person for
any
period, any expenditure in respect of the purchase or other
acquisition of any
fixed or capital asset (which shall be deemed not to include any
FCC License)
(excluding normal replacements and maintenance which are
properly charged to
current operations).
"CAPITALIZED LEASES" means all leases that, in accordance with
GAAP,
are required to be classified and accounted for as capitalized
leases on a
balance sheet of a Person.
"CASH COLLATERAL ACCOUNT" means a blocked, non-interest
bearing
deposit account of one or more of the Loan Parties at Bank of
America (or
another commercial bank selected in compliance with Section
6.19) in the name of
the Collateral Agent and under the sole dominion and control of
the Collateral
Agent, and otherwise established in a manner satisfactory to the
Administrative
Agent.
"CASH COLLATERALIZE" has the meaning specified in Section
2.03(g).
"CASH DISTRIBUTIONS" means, with respect to any Person for
any
period, all dividends and other distributions on any of the
outstanding Equity
Interests in such Person, all purchases, redemptions,
retirements, defeasances
or other acquisitions of any of the outstanding
5
<PAGE>
Equity Interests in such Person and all returns of capital to
the stockholders,
partners or members (or the equivalent persons) of such Person,
in each case to
the extent paid in cash by or on behalf of such Person during
such period.
"CASH EQUIVALENTS" means any of the following types of
Investments,
to the extent owned by Holdings or any of its Subsidiaries:
(a) readily marketable obligations issued or directly and
fully
guaranteed or insured by the United States of America or any
agency or
instrumentality thereof having maturities of not more than one
year from the
date of acquisition thereof;
(b) time deposits or demand deposits with, or insured
certificates
of deposit or bankers' acceptances maturing within one year of
the date of
acquisition thereof issued or placed with, or money market
deposit accounts
issued or offered by, any commercial bank that (i) (A) is a
Lender or (B) is
organized under the laws of the United States of America, any
state thereof or
the District of Columbia or is the principal banking subsidiary
of a bank
holding company organized under the laws of the United States of
America, any
state thereof or the District of Columbia, and is a member of
the Federal
Reserve System, (ii) issues (or the parent of which issues)
commercial paper
rated as described in clause (c) of this definition and (iii)
has combined
capital and surplus of at least $500,000,000;
(c) commercial paper outstanding at any time issued by any
Person
organized under the laws of any state of the United States of
America and rated
at least "Prime-1" (or the then equivalent grade) by Moody's or
at least "A-1"
(or the then equivalent grade) by S&P, in each case with
maturities of not more
than 270 days from the date of acquisition thereof;
(d) securities with maturities of not more than one year from
the
date of acquisition thereof issued or fully guaranteed by any
state, territory
or municipality of the Untied States of America or by any
political subdivision,
taxing authority, agency or instrumentality thereof and rated at
least A by S&P
or A by Moody's;
(e) insured demand deposits made in the ordinary course of
business
and consistent with Holdings' or its Subsidiaries' customary
cash management
policy in any domestic office of any commercial bank organized
under the laws of
the United States of America or any state thereof;
(f) repurchase obligations with a term of not more than 90 days
for,
and secured by, underlying securities of the types described in
clauses (a)
through (c) of this definition entered into with a bank meeting
the
qualifications described in clause (b) of this definition;
and
(g) Investments, classified in accordance with GAAP as
Current
Assets of Holdings or any of its Subsidiaries, in money market
mutual funds or
investment programs registered under the Investment Company Act
of 1940, the
portfolios of which are limited solely to Investments of the
character, quality
and maturity described in clauses (a) through (f) of this
definition.
6
<PAGE>
"CFC" means a "controlled foreign corporation" under Section 957
of
the Code.
"CHANGE IN LAW" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking
effect of any
law, rule, regulation or treaty, (b) any change in any law,
rule, regulation or
treaty or in the administration, interpretation or application
thereof by any
Governmental Authority or (c) the making or issuance of any
request, guideline
or directive (whether or not having the force of law) by any
Governmental
Authority.
"CHANGE OF CONTROL" means, an event or series of events by
which:
(a) any "person" or "group" (as such terms are used in
Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any
employee benefit plan of such person or its subsidiaries, and
any person or
entity acting in its capacity as trustee, agent or other
fiduciary or
administrator of any such plan) becomes the "beneficial owner"
(as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a
person or group shall be deemed to have "beneficial ownership"
of all securities
that such person or group has the right to acquire (such right,
an "OPTION
RIGHT"), to the extent that such right is exercisable within 60
days after the
date of determination), directly or indirectly, of 35% or more
of the equity
securities of Holdings entitled to vote for members of the board
of directors or
equivalent governing body of Holdings on a fully-diluted basis
(and taking into
account all such securities that such "person" or "group" has
the right to
acquire pursuant to any option right to the extent that such
option right is
exercisable within 60 days after the date of determination);
or
(b) during any period of 12 consecutive months, a majority of
the
members of the board of directors or other equivalent governing
body of the
Borrower or Holdings cease to be composed of individuals (i) who
were members of
that board or equivalent governing body on the first day of such
period, (ii)
whose election or nomination to that board or equivalent
governing body was
approved by individuals referred to in clause (i) above
constituting at the time
of such election or nomination at least a majority of that board
or equivalent
governing body or (iii) whose election or nomination to that
board or other
equivalent governing body was approved by individuals referred
to in clauses (i)
and (ii) above constituting at the time of such election or
nomination at least
a majority of that board or equivalent governing body
(excluding, in the case of
both clause (ii) and clause (iii), any individual whose initial
nomination for,
or assumption of office as, a member of that board or equivalent
governing body
occurs as a result of an actual or threatened solicitation of
proxies or
consents for the election or removal of one or more directors by
any person or
group other than a solicitation for the election of one or more
directors by or
on behalf of the board of directors); or
(c) any Person or two or more Persons acting in concert shall
have
entered into a contract or arrangement that, upon consummation
thereof, will
result in its or their acquisition of or control over the equity
securities of
Holdings entitled to vote for members of the board of directors
or equivalent
governing body of the Borrower or Holdings on a fully-diluted
basis (and taking
into account all such securities that such person or group has
the right to
acquire pursuant to any option right to the extent that
7
<PAGE>
such option right is exercisable within 60 days after the date
of determination)
representing 35% or more of the combined voting power of such
securities; or
(d) Holdings shall cease, directly or indirectly, to own and
control
legally and beneficially all of the Equity Interests in the
Borrower; or
(e) a "change of control" or any comparable term under, and
as
defined in, the document governing any High Yield Debt shall
have occurred.
"CLOSING DATE" means the first date on which all the
conditions
precedent in Section 4.01 are satisfied or waived in accordance
with Section
10.01 and the initial Credit Extension hereunder is made.
"CODE" means the Internal Revenue Code of 1986 as amended.
"COLLATERAL" means all of the "Collateral" referred to in
the
Collateral Documents and all of the other property and assets
that are or are
purported under the terms of the Collateral Documents to be
subject to Liens in
favor of the Administrative Agent for the benefit of the Secured
Parties.
"COLLATERAL AGENT" means Bank of America in its capacity as
collateral agent under the Security Agreement or any successor
or replacement
collateral agent.
"COLLATERAL DOCUMENTS" means, collectively, the Security
Agreement,
the Intellectual Property Security Agreement, each of the
mortgages, collateral
assignments, Security Agreement Supplements, IP Security
Agreement Supplements,
security agreements, pledge agreements or other similar
agreements delivered to
the Administrative Agent and the Lenders pursuant to Section
6.12, and each of
the other agreements, instruments or documents that creates or
purports to
create a Lien in favor of the Administrative Agent for the
benefit of the
Secured Parties.
"COMMITMENT" means a Term B Commitment or a Revolving Credit
Commitment, as the context may require.
"COMMITTED LOAN NOTICE" means a notice of (a) a Term B
Borrowing,
(b) a Revolving Credit Borrowing, (c) a conversion of Loans from
one Type to the
other, or (d) a continuation of Eurodollar Rate Loans, pursuant
to Section
2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.
"COMPLIANCE CERTIFICATE" means a certificate substantially in
the
form of Exhibit D.
"CONSOLIDATED ADJUSTED EBITDA" means, for the twelve months
ended
September 30, 2004, for Holdings and its Subsidiaries on a
consolidated basis,
an amount equal to Consolidated Net Income for such period plus
the following to
the extent deducted in calculating such Consolidated Net Income:
(a)
Consolidated Interest Charges for such period, (b) the provision
for federal,
state, local and foreign income tax expense of Holdings and its
Subsidiaries for
such period, (c) depreciation and amortization expense, (d)
impairment of assets
8
<PAGE>
(tangible and intangible) and related charges and (e) net
reorganization
expenses and charges incurred on or prior to September 30, 2004
in connection
with the transactions contemplated by the Plan of
Reorganization.
"CONSOLIDATED ADJUSTED LEVERAGE RATIO" means the ratio of
(a)
Consolidated Funded Indebtedness as of the Closing Date to (b)
Consolidated
Adjusted EBITDA for the twelve months ended September 30,
2004.
"CONSOLIDATED EBITDA" means, for any Measurement Period, an
amount
equal to Consolidated Net Income for such period plus (a) the
following to the
extent deducted in calculating such Consolidated Net Income
(without
duplication): (i) Consolidated Interest Charges for such period,
(ii) all
Federal, state, local and foreign income tax expense deducted in
arriving at
Consolidated Net Income, (iii) depreciation and amortization
expense, (iv)
non-cash impairment of assets (tangible and intangible) and
related non-cash
charges, (v) non-cash charges and expenses related to
stock-based compensation
awards made by Holdings and its Subsidiaries, (vi) net
reorganization expenses
and charges incurred on or prior to September 30, 2004 in
connection with the
transactions contemplated by the Plan of Reorganization and net
non-cash
reorganization expenses and charges incurred after September 30,
2004 (but in
each case only to the extent not excluded from Consolidated Net
Income), (vii)
non-cash dividends or other distributions made with respect to
Qualified
Preferred Stock and (viii) other non-recurring expenses reducing
such
Consolidated Net Income which do not represent a cash item in
such period or any
future period and minus (b) the following to the extent included
in calculating
such Consolidated Net Income (without duplication): (i) Federal,
state, local
and foreign income tax credits of Holdings and its Subsidiaries
for such period,
(ii) all non-cash gains arising in relation to any FCC Licenses
and (iii) all
non-cash items increasing Consolidated Net Income for such
period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, as of any date
of
determination, the ratio of (a) (i) Consolidated EBITDA less
(ii) the aggregate
amount of all Capital Expenditures (other than Capital
Expenditures made in
connection with acquisitions or acquisition-related build outs
during the period
until one year after commercial launch of the relevant project)
to (b) the sum
(without duplication) of (i) Consolidated Interest Charges paid
or required to
be paid in cash for such period, (ii) the aggregate principal
amount of all
regularly scheduled principal payments or redemptions and all
required
prepayments, repurchases, redemptions or similar acquisitions
for value of
outstanding debt for borrowed money, but excluding (A) any such
payments to the
extent refinanced through the incurrence of additional
Indebtedness otherwise
expressly permitted under Section 7.02, (B) any of the principal
payments in
respect of the Term B Loans scheduled to be made during the last
year prior to
the Maturity Date and (C) principal payments in respect of
vendor or FCC debt
made during August 2004 in connection with the transactions
contemplated by the
Plan of Reorganization, (iii) rentals payable in cash during
such period under
leases of real or personal, or mixed, property, to the extent
not already
deducted in calculating Consolidated Net Income, (iv) income
taxes paid in cash
and (v) the aggregate amount of all Cash Distributions of
Holdings, in each
case, other than with respect to clause (v), of or by Holdings
and its
Subsidiaries on a consolidated basis for the most recently
completed Measurement
Period.
9
<PAGE>
"CONSOLIDATED FUNDED INDEBTEDNESS" means, as of any date of
determination, for Holdings and its Subsidiaries on a
consolidated basis, the
sum (without duplication) of (a) the outstanding principal
amount of all
obligations, whether current or long-term, for borrowed money
(including
Obligations hereunder) and all obligations evidenced by bonds,
debentures,
notes, loan agreements or other similar instruments, (b) all
Indebtedness
incurred for the purpose of purchasing, constructing or
improving capital
assets, (c) all direct obligations arising under letters of
credit (including
standby and commercial), bankers' acceptances, bank guaranties,
surety bonds and
similar instruments, (d) all obligations in respect of the
deferred purchase
price of property or services (other than trade accounts payable
in the ordinary
course of business), (e) Attributable Indebtedness, (f) without
duplication, all
Guarantees with respect to outstanding Indebtedness of the types
specified in
clauses (a) through (e) above of Persons other than Holdings or
any Subsidiary,
and (g) all Indebtedness of the types referred to in clauses (a)
through (f)
above of any partnership or joint venture (other than a joint
venture that is
itself a corporation or limited liability company) in which the
Borrower or a
Subsidiary is a general partner or joint venturer, unless such
Indebtedness is
non-recourse to Holdings or such Subsidiary; provided that
Consolidated Funded
Indebtedness shall not be deemed to include any obligations of
Holdings or any
of its Subsidiaries of any type described in Section
7.03(l).
"CONSOLIDATED INTEREST CHARGES" means, for any Measurement
Period,
the sum (without duplication) of (a) all interest, premium
payments, debt
discount, fees, charges and related expenses in connection with
borrowed money
(including capitalized interest) or in connection with the
deferred purchase
price of assets, in each case to the extent treated as interest
in accordance
with GAAP and (b) the portion of rent expense with respect to
such period under
Capitalized Leases that is treated as interest in accordance
with GAAP, in each
case, of or by Holdings and its Subsidiaries on a consolidated
basis for such
period; provided, that for each of the first four Measurement
Periods ending
after the Closing Date, (x) for each fiscal quarter in such
Measurement Period
ending prior to the Closing Date, Consolidated Interest Charges
of the type
referred to in clause (a) above shall be calculated on a pro
forma basis as
though the Closing Date had occurred at the beginning of such
Measurement
Period, assuming that the Loans borrowed as of the Closing Date
were Eurodollar
Rate Loans and assuming that the LIBO Rate applicable thereto is
equal to a rate
designated by the Administrative Agent to the Borrower as of the
Closing Date
and (y) for each fiscal quarter in such Measurement Period
ending after the
Closing Date, Consolidated Interest Charges of the type referred
to in clause
(a) above shall be the actual Consolidated Interest Charges of
such type for
such fiscal quarter.
"CONSOLIDATED INTEREST COVERAGE RATIO" means, as of any date
of
determination, the ratio of (a) Consolidated EBITDA to (b)
Consolidated Interest
Charges paid in cash, in each case, of or by Holdings and its
Subsidiaries for
the most recently completed Measurement Period.
"CONSOLIDATED LEVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness
as of such date
to (b) Consolidated EBITDA of Holdings and its Subsidiaries for
the most
recently completed Measurement Period.
"CONSOLIDATED NET INCOME" means, at any date of determination,
the
net income of Holdings and its Subsidiaries (without giving
effect to
extraordinary gains, extraordinary
10
<PAGE>
losses or net reorganization items in connection with the
transactions
contemplated by the Plan of Reorganization) on a consolidated
basis for the most
recently completed Measurement Period.
"CONSOLIDATED SENIOR SECURED LEVERAGE RATIO" means, as of any
date
of determination, the ratio of (a) senior secured Consolidated
Funded
Indebtedness as of such date to (b) Consolidated EBITDA of
Holdings and its
Subsidiaries for the most recently completed Measurement
Period.
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision
of
any security issued by such Person or of any agreement,
instrument or other
undertaking to which such Person is a party or by which it or
any of its
property is bound.
"CONTROL" means the possession, directly or indirectly, of the
power
to direct or cause the direction of the management or policies
of a Person,
whether through the ability to exercise voting power, by
contract or otherwise.
"CONTROLLING" and "CONTROLLED" have meanings correlative
thereto.
"CREDIT EXTENSION" means each of the following: (a) a Borrowing
and
(b) an L/C Credit Extension.
"CSFB" means Credit Suisse First Boston, acting through one or
more
of its branches or affiliates.
"CURRENT ASSETS" means, with respect to any Person, all assets
of
such Person that, in accordance with GAAP, would be classified
as current assets
on the balance sheet of a company conducting a business the same
as or similar
to that of such Person, after deducting appropriate and adequate
reserves
therefrom in each case in which a reserve is proper in
accordance with GAAP.
"CURRENT LIABILITIES" means, with respect to any Person, all
items
that, in accordance with GAAP, would be classified as current
liabilities on the
balance sheet of a company conducting a business the same as or
similar to that
of such Person.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States,
and all other liquidation, conservatorship, bankruptcy,
assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency,
reorganization, or similar debtor relief Laws of the United
States or other
applicable jurisdictions from time to time in effect and
affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event
of
Default or that, with the giving of any notice, the passage of
time, or both,
would be an Event of Default.
"DEFAULT RATE" means (a) when used with respect to Obligations
other
than Letter of Credit Fees, an interest rate equal to (i) the
Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans
plus (iii) 2.0%
per annum; provided, however, that with respect to a Eurodollar
Rate Loan, the
Default Rate shall be an interest rate equal to the interest
rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2.0% per
annum and (b)
11
<PAGE>
when used with respect to Letter of Credit Fees, a rate equal to
the Applicable
Rate plus 2.0% per annum.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund
any
portion of the Term B Loans, Revolving Credit Loans or
participations in L/C
Obligations required to be funded by it hereunder within one
Business Day of the
date required to be funded by it hereunder, (b) has otherwise
failed to pay over
to the Administrative Agent or any other Lender any other amount
required to be
paid by it hereunder within one Business Day of the date when
due, unless the
subject of a good faith dispute, or (c) has been deemed
insolvent or become the
subject of a bankruptcy or insolvency proceeding.
"DESIGNATED COMPETITOR" has the meaning specified in Section
10.06(a).
"DESIGNATED ENTITY" means a Person eligible to participate in an
FCC
auction or auctions for FCC Licenses and/or purchase of FCC
Licenses or spectrum
in an after-market therefor, from time to time as a "Designated
Entity,"
"Entrepreneur," "Small Business," or "Very Small Business," as
those terms are
defined under FCC rules and regulations from time to time;
provided, however,
that no such Person controlled by Holdings or any of its
Subsidiaries shall be a
Designated Entity.
"DISCLOSED LITIGATION" has the meaning set forth in Section
5.06.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license,
lease
or other disposition (including any sale and leaseback
transaction) of any
property by any Person (or the granting of any option or other
right to do any
of the foregoing), including any sale, assignment, transfer or
other disposal,
with or without recourse, of any notes or accounts receivable or
any rights and
claims associated therewith.
"DISQUALIFIED SUBSIDIARY" means, at any time, a Subsidiary that
was
formerly a Designated Entity and that at such time has
outstanding Indebtedness
of the type referred to in Section 7.02(b)(F) (unless such
Indebtedness is
otherwise permitted pursuant to one or more other clauses of
Section 7.02(b)),
until such time as such Subsidiary has complied with the
requirements of Section
6.12(a).
"DOCUMENTATION AGENTS" means GSCP and CSFB in their capacities
as
documentation agents under any of the Loan Documents.
"DOLLAR" and "$" mean lawful money of the United States.
"DOMESTIC SUBSIDIARY" means any Subsidiary that is organized
under
the laws of any political subdivision of the United States.
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of
a
Lender; (c) an Approved Fund; and (d) any other Person (other
than a natural
person) approved by (i) the Administrative Agent, (ii) in the
case of any
assignment of a Revolving Commitment, each L/C Issuer, and (iii)
unless an Event
of Default has occurred and is continuing, the Borrower (each
such approval not
to be unreasonably withheld or delayed); provided that
notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or
any of the
Borrower's Affiliates
12
<PAGE>
or Subsidiaries (other than any Affiliate that is not Holdings
or a Subsidiary
of Holdings and becomes a Lender in connection with the primary
syndication of
the Facilities, or an Affiliate of such a Lender).
"ENVIRONMENTAL ACTION" means any claim, action, suit,
arbitration,
inquiry, proceeding, investigation, demand, demand letter, lien,
notice of
non-compliance or violation, notice of liability or potential
liability, consent
order or consent agreement, by or with any Person, relating to
any Environmental
Law, Environmental Permit or Hazardous Material.
"ENVIRONMENTAL LAWS" means any and all Federal, state, local,
and
foreign statutes, laws, regulations, ordinances, rules,
judgments, orders,
decrees, permits, concessions, grants or binding agreements, in
each case
issued, promulgated or entered into by a Governmental Authority,
relating to
pollution and the protection of the environment or the release
of any materials
into the environment, including those related to Hazardous
Materials or wastes,
air emissions and discharges to waste or public systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental
remediation, fines, penalties or indemnities), of the Borrower,
any other Loan
Party or any of their respective Subsidiaries directly or
indirectly resulting
from or based upon (a) violation of any Environmental Law, (b)
the generation,
use, handling, transportation, storage, treatment or disposal of
any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the
release or
threatened release of any Hazardous Materials into the
environment or (e) any
contract, agreement or other consensual arrangement pursuant to
which liability
is assumed or imposed with respect to any of the foregoing.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification
number, license or other authorization required under any
Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, any of
the
shares of capital stock of (or other ownership or profit
interests in) such
Person, any of the warrants, options or other rights for the
purchase or
acquisition from such Person of shares of capital stock of (or
other ownership
or profit interests in) such Person, any of the securities
convertible into or
exchangeable for shares of capital stock of (or other ownership
or profit
interests in) such Person or warrants, rights or options for the
purchase or
acquisition from such Person of such shares (or such other
interests), and any
of the other ownership or profit interests in such Person
(including, without
limitation, partnership, member or trust interests therein),
whether voting or
nonvoting, and whether or not such shares, warrants, options,
rights or other
interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of
1974
and the regulations promulgated and the rulings issued
thereunder.
"ERISA AFFILIATE" means any trade or business (whether or
not
incorporated) under common control with the Borrower within the
meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o)
of the Code for
purposes of provisions relating to Section 412 of the Code).
13
<PAGE>
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension
Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate
from a Pension
Plan subject to Section 4063 of ERISA during a plan year in
which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA)
or a cessation
of operations that is treated as such a withdrawal under Section
4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or
any ERISA
Affiliate from a Multiemployer Plan under Section 4203 or 4205
of ERISA or
notification that a Multiemployer Plan is in reorganization
under Section 4241;
(d) the filing of a notice of intent to terminate, the treatment
of a Pension
Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension
Plan; (e) an
event or condition which constitutes grounds under Section 4042
of ERISA for the
termination of, or the appointment of a trustee to administer,
any Pension Plan
or Multiemployer Plan; or (f) the imposition of any liability
under Title IV of
ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.
"EURODOLLAR RATE" means for any Interest Period with respect to
any
Eurodollar Rate Loan, a rate per annum determined by the
Administrative Agent
pursuant to the following formula:
LIBO Rate
Eurodollar Rate = --------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"LIBO RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the
page of
the Telerate screen (or any successor thereto) that displays an
average
British Bankers Association Interest Settlement Rate for
deposits in
Dollars (for delivery on the first day of such Interest Period)
with a
term equivalent to such Interest Period, determined as of
approximately
11:00 a.m. (London time) two Business Days prior to the first
day of such
Interest Period, or
(b) if the rate referenced in the preceding clause (a) does
not
appear on such page or service or such page or service shall not
be
available, the rate per annum equal to the rate determined by
the
Administrative Agent to be the offered rate on such other page
or other
service that displays an average British Bankers Association
Interest
Settlement Rate for deposits in Dollars (for delivery on the
first day of
such Interest Period) with a term equivalent to such Interest
Period,
determined as of approximately 11:00 a.m. (London time) two
Business Days
prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b)
are
not available, the rate per annum determined by the
Administrative Agent
as the rate of interest at which deposits in Dollars for
delivery on the
first day of such Interest Period in same day funds in the
approximate
amount of the Eurodollar Rate Loan being made, continued or
converted by
Bank of America and with a term equivalent to such Interest
14
<PAGE>
Period would be offered by Bank of America's London Branch to
major banks
in the London interbank eurodollar market at their request
at
approximately 4:00 p.m. (London time) two Business Days prior to
the first
day of such Interest Period.
"EURODOLLAR RATE LOAN" means a Revolving Credit Loan or a Term
B
Loan that bears interest at a rate based on the Eurodollar
Rate.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during
any
Interest Period, the reserve percentage (expressed as a decimal,
carried out to
five decimal places) in effect on such day, whether or not
applicable to any
Lender, under regulations issued from time to time by the FRB
for determining
the maximum reserve requirement (including any emergency,
supplemental or other
marginal reserve requirement) with respect to Eurocurrency
funding (currently
referred to as "EUROCURRENCY LIABILITIES"). The Eurodollar Rate
for each
outstanding Eurodollar Rate Loan shall be adjusted automatically
as of the
effective date of any change in the Eurodollar Reserve
Percentage.
"EVENT OF DEFAULT" has the meaning specified in Section
8.01.
"EXCESS CASH FLOW" means, for any period, the sum (without
duplication) of (a) Consolidated Net Income for such period,
plus (b) an amount
equal to the aggregate amount of all noncash charges (including
depreciation and
amortization) deducted in determining the Consolidated Net
Income for such
period, plus (c) an amount (whether positive or negative) equal
to the change in
consolidated Current Liabilities of Holdings and its
Subsidiaries during such
period, less (d) an amount equal to the aggregate amount of all
noncash income,
gains or credits included in determining the Consolidated Net
Income for such
period, less (e) an amount (whether positive or negative) equal
to the change in
consolidated Current Assets (excluding cash and Cash
Equivalents) of Holdings
and its Subsidiaries during such period, less (f) an amount
equal to the
aggregate amount of all Capital Expenditures by Holdings and its
Subsidiaries
during such period, less (g) an amount equal to the aggregate
amount of all
Required Principal Payments made by Holdings and its
Subsidiaries during such
period, and the aggregate principal amount of all optional
prepayments made
pursuant to Section 2.04(a) during such period (to the extent
that each such
optional prepayment in respect of the Revolving Credit Facility
resulted in a
corresponding permanent commitment reduction of the Revolving
Credit Facility
pursuant to Section 2.05 at the time of such prepayment), less
(h) the aggregate
amount of all mandatory prepayments made pursuant to Section
2.04(b)(ii) during
such period with Net Cash Proceeds to the extent that such Net
Cash Proceeds are
included in determining Consolidated Net Income for such period,
less (i) an
amount equal to the aggregate amount of all Cash Distributions
paid by Holdings
during such period less (j) an amount equal to the aggregate
amount of cash
expenditures on Investments pursuant to Sections 7.03(k) and
7.03(l) and on FCC
Licenses.
"EXCLUDED SUBSIDIARIES" means, collectively, Orrengrove
Investments
Limited and Leap Wireless Mexico S.A. de C.V., each a Subsidiary
of Holdings.
"EXCLUDED TAXES" means, with respect to the Administrative
Agent,
any Lender, the L/C Issuer or any other recipient of any payment
to be made by
or on account of any obligation of the Borrower hereunder, (a)
taxes including
interest, penalties and additions to tax
15
<PAGE>
imposed on or measured by its overall net income or net profits
(however
denominated), and franchise taxes imposed on it (in lieu of net
income taxes),
by the jurisdiction (or any political subdivision thereof) under
the laws of
which such recipient is organized or in which its principal
office is located
or, in the case of any Lender, in which its applicable Lending
Office is located
or any jurisdiction in which such recipient is otherwise engaged
in a trade or
business as a result of transactions unrelated to the Loan
Documents (except to
the extent such tax is imposed because of a connection between
the Borrower, its
agent or any affiliate and the jurisdiction imposing such a
tax), (b) any branch
profits taxes imposed by the United States or any similar tax
imposed by any
other jurisdiction in which the Borrower is located and (c) in
the case of a
Foreign Lender (other than an assignee pursuant to a request by
the Borrower
under Section 10.13), any withholding tax that is imposed on
amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a
party hereto (or
designates a new Lending Office), except to the extent that such
Foreign Lender
(or its assignor, if any) was entitled, at the time of
designation of a new
Lending Office (or assignment), to receive additional amounts
from the Borrower
with respect to such withholding tax pursuant to Section 3.01(a)
or is
attributable to such Foreign Lender's failure or inability
(other than as a
result of a Change in Law) to comply with Section 3.01(e).
"EXISTING NOTES" has the meaning specified in the
introductory
paragraphs hereto.
"EXTRAORDINARY RECEIPT" means any cash received by or paid to or
for
the account of any Person not in the ordinary course of
business, including tax
refunds, pension plan reversions, proceeds of insurance (other
than proceeds of
business interruption insurance to the extent such proceeds
constitute
compensation for lost earnings), condemnation awards (and
payments in lieu
thereof), indemnity payments and any purchase price adjustments;
provided,
however, that an Extraordinary Receipt shall not include cash
receipts received
from proceeds of insurance, condemnation awards (or payments in
lieu thereof) or
indemnity payments to the extent that such proceeds, awards or
payments (a) in
respect of loss or damage to equipment, fixed assets or real
property are
applied (or in respect of which expenditures were previously
incurred) to
replace or repair the equipment, fixed assets or real property
in respect of
which such proceeds were received in accordance with the terms
of Section
2.04(b)(ii) or (b) are received by any Person in respect of any
third party
claim against such Person and applied to pay (or to reimburse
such Person for
its prior payment of) such claim and the costs and expenses of
such Person with
respect thereto.
"FACILITY" means the Term B Facility, the Revolving Credit
Facility
or the Letter of Credit Sublimit, as the context may
require.
"FCC" has the meaning specified in the introductory
paragraphs
hereto.
"FCC INDEBTEDNESS" has the meaning specified in the
introductory
paragraphs hereto.
"FCC LICENSES" means broadband personal communications
service
licenses or other licenses for the provision of wireless
telecommunications
services or operation of wireless telecommunications systems
issued by the FCC
from time to time.
16
<PAGE>
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
equal to
the weighted average of the rates on overnight Federal funds
transactions with
members 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 (rounded
upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of
America on such day on such transactions as determined by the
Administrative
Agent.
"FEE LETTERS" means collectively, (a) the Arrangement Fee Letter
and
(b) the letter agreement, dated November 5, 2004, among
Holdings, the Borrower
and the Administrative Agent.
"FOREIGN LENDER" means any Lender that is organized under the
laws
of a jurisdiction other than that in which the Borrower is
resident for tax
purposes. For purposes of this definition, the United States,
each State thereof
and the District of Columbia shall be deemed to constitute a
single
jurisdiction.
"FRB" means the Board of Governors of the Federal Reserve System
of
the United States, or any successor thereto.
"FUND" means any Person (other than a natural person) that is
(or
will be) engaged in making, purchasing, holding or otherwise
investing in
commercial loans and similar extensions of credit in the
ordinary course of its
business.
"GAAP" means generally accepted accounting principles in the
United
States set forth in the opinions and pronouncements of the
Accounting Principles
Board and the American Institute of Certified Public Accountants
and statements
and pronouncements of the Financial Accounting Standards Board
or such other
principles as may be approved by a significant segment of the
accounting
profession in the United States, that are applicable to the
circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY" means the government of the United
States
or any other nation, or of any political subdivision thereof,
whether state or
local, and any agency, authority, instrumentality, regulatory
body, court,
central bank or other entity exercising executive, legislative,
judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to
government (including any supra-national bodies such as the
European Union or
the European Central Bank).
"GRANTING LENDER" has the meaning specified in Section
10.06(h).
"GSCP" means Goldman Sachs Credit Partners L.P.
"GUARANTEE" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guaranteeing or having
the economic
effect of guaranteeing any Indebtedness or other obligation
payable or
performable by another Person (the "PRIMARY
17
<PAGE>
OBLIGOR") in any manner, whether directly or indirectly, and
including any
obligation of such Person, direct or indirect, (i) to purchase
or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or
other obligation, (ii) to purchase or lease property, securities
or services for
the purpose of assuring the obligee in respect of such
Indebtedness or other
obligation of the payment or performance of such Indebtedness or
other
obligation, (iii) to maintain working capital, equity capital or
any other
financial statement condition or liquidity or level of income or
cash flow of
the primary obligor so as to enable the primary obligor to pay
such Indebtedness
or other obligation, or (iv) entered into for the purpose of
assuring in any
other manner the obligee in respect of such Indebtedness or
other obligation of
the payment or performance thereof or to protect such obligee
against loss in
respect thereof (in whole or in part), or (b) any Lien on any
assets of such
Person securing any Indebtedness or other obligation of any
other Person,
whether or not such Indebtedness or other obligation is assumed
by such Person
(or any right, contingent or otherwise, of any holder of such
Indebtedness to
obtain any such Lien). The amount of any Guarantee within the
meaning of clause
(a) of this definition shall be deemed to be an amount equal to
the stated or
determinable amount of the related primary obligation, or
portion thereof, in
respect of which such Guarantee is made or, if not stated or
determinable, the
maximum reasonably anticipated liability in respect thereof as
determined by the
guaranteeing Person in good faith. The amount of any Guarantee
within the
meaning of clause (b) of this definition shall be deemed to be
an amount equal
to the lesser of (x) the amount of the Indebtedness or other
obligation secured
by such Lien and (y) the value of the assets subject to such
Lien. The term
"GUARANTEE" as a verb has a corresponding meaning.
"GUARANTORS" means, collectively, Holdings, the Subsidiaries of
the
Borrower listed on Schedule I and each other Subsidiary of
Holdings that shall
be required to execute and deliver a guaranty or guaranty
supplement pursuant to
Section 6.12.
"GUARANTY" means, collectively, (a) the Parent Guaranty made
by
Holdings in favor of the Secured Parties, in substantially the
form of Exhibit
F-1, and (b) the Subsidiary Guaranty made by the Guarantors
(other than
Holdings) in favor of the Secured Parties, substantially in the
form of Exhibit
F-2, together with each other guaranty and guaranty supplement
delivered
pursuant to Section 6.12.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances
or wastes and all hazardous or toxic substances, wastes or other
pollutants,
including petroleum or petroleum distillates, asbestos or
asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes
and all other substances or wastes of any nature regulated
pursuant to any
Environmental Law.
"HEDGE BANK" means any Person that is a Lender or an Affiliate
of a
Lender, in its capacity as a party to a Secured Hedge
Agreement.
"HIGH YIELD DEBT" means unsecured debt securities of the
Borrower or
Holdings issued pursuant to a registered public offering or a
private placement
for resale under Rule 144A or Regulation S under the Securities
Act of 1933, as
amended.
"HIGH YIELD ISSUANCE DATE" means first the date on which the
Borrower shall have issued any High Yield Debt for cash.
18
<PAGE>
"HOLDINGS" has the meaning specified in the introductory
paragraphs
hereto.
"INCREMENTAL FACILITY" has the meaning specified in Section
2.13(d).
"INDEBTEDNESS" means, as to any Person at a particular time,
without
duplication, all of the following, whether or not included as
indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and
all
obligations of such Person evidenced by bonds, debentures,
notes, loan
agreements or other similar instruments;
(b) the maximum amount of all direct or contingent obligations
of
such Person arising under letters of credit (including standby
and
commercial), bankers' acceptances, bank guaranties, surety bonds
and
similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred
purchase
price of property or services (other than trade accounts payable
in the
ordinary course of business and not past due for more than 180
days after
the date on which the invoice in respect of such trade payable
was
received);
(e) indebtedness (excluding prepaid interest thereon) secured by
a
Lien on property owned or being purchased by such Person
(including
indebtedness arising under conditional sales or other title
retention
agreements), whether or not such indebtedness shall have been
assumed by
such Person or is limited in recourse (provided, that if
recourse to such
Person for such indebtedness is limited to the property or
assets subject
to such Lien, then such indebtedness shall constitute
Indebtedness of such
Person solely to the extent of the lower of (i) the amount of
the
indebtedness secured by such Lien and (ii) the value of the
property and
assets subject to such Lien);
(f) all Attributable Indebtedness;
(g) all obligations of such Person to purchase, redeem,
retire,
defease or otherwise make any payment in respect of (i) any
Equity
Interest in such Person or any other Person or (ii) any warrant,
right or
option to acquire such Equity Interest, excluding in each case
any such
obligations to the extent that such obligations by their terms
permit
satisfaction in common Equity Interests or Qualified Preferred
Stock (or
any combination thereof) of Holdings, valued, in the case of a
redeemable
preferred interest, at the greater of its voluntary or
involuntary
liquidation preference plus accrued and unpaid dividends;
and
(h) all Guarantees of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person
shall
include the Indebtedness of any partnership or joint venture
(other than a joint
venture that is itself a corporation or limited liability
company) in which such
Person is a general partner or a joint
19
<PAGE>
venturer, unless such Indebtedness is non-recourse to such
Person. The amount of
any net obligation under any Swap Contract on any date shall be
deemed to be the
Swap Termination Value thereof as of such date. From and after
the occurrence of
the discharge of the indenture under which the Existing Notes
were issued, the
principal amount of the Existing Notes and the accrued interest
in respect
thereof shall not constitute "Indebtedness" hereunder.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITEES" has the meaning specified in Section 10.04(b).
"INFORMATION MEMORANDUM" means the information memorandum
dated
November, 2004 used by the Joint Lead Arrangers in connection
with the
syndication of the Commitments, as supplemented or updated prior
to the date
hereof by or with the consent of the Joint Lead Arrangers.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" has the meaning
specified
in Section 4.01(a)(iv).
"INTEREST PAYMENT DATE" means, (a) as to any Eurodollar Rate
Loan,
the last day of each Interest Period applicable to such Loan and
the Maturity
Date of the Facility under which such Loan was made; provided,
however, that if
any Interest Period for a Eurodollar Rate Loan exceeds three
months, the
respective dates that fall every three months after the
beginning of such
Interest Period shall also be Interest Payment Dates; and (b) as
to any Base
Rate Loan, the last Business Day of each March, June, September
and December and
the Maturity Date of the Facility under which such Loan was
made.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the
period
commencing on the date such Eurodollar Rate Loan is disbursed or
converted to or
continued as a Eurodollar Rate Loan and ending on the date one,
two, three or
six months thereafter, as selected by the Borrower in its
Committed Loan Notice;
provided that:
(i) any Interest Period that would otherwise end on a day that
is
not a Business Day shall be extended to the next succeeding
Business Day
unless such Business Day falls in another calendar month, in
which case
such Interest Period shall end on the next preceding Business
Day;
(ii) any Interest Period that begins on the last Business Day of
a
calendar month (or on a day for which there is no
numerically
corresponding day in the calendar month at the end of such
Interest
Period) shall end on the last Business Day of the calendar month
at the
end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date
of
the Facility under which such Loan was made.
"INVESTMENT" means, as to any Person, any direct or indirect
acquisition or investment by such Person, whether by means of
(a) the purchase
or other acquisition of Equity Interests of another Person, (b)
a loan, advance
or capital contribution to, or purchase or other acquisition of
any other debt
or equity participation or interest in, another Person and any
and all
20
<PAGE>
Guarantees of a Designated Entity or assumptions of debt of a
Designated Entity,
or (c) the purchase or other acquisition (in one transaction or
a series of
transactions) of assets of another Person that constitute a
business unit or all
or a substantial part of the business of, such Person. For
purposes of covenant
compliance, the amount of any Investment shall be the amount
actually invested,
without adjustment for subsequent increases or decreases in the
value of such
Investment.
"IP RIGHTS" has the meaning specified in Section 5.17.
"IP SECURITY AGREEMENT SUPPLEMENT" has the meaning specified
in
Section 14(f) of the Security Agreement.
"IRS" means the United States Internal Revenue Service.
"ISDA MASTER AGREEMENT" means the Master Agreement
(Multicurrency-Cross Border) published by the International Swap
and Derivatives
Association, Inc., as in effect from time to time.
"ISP" means, with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the
Institute of
International Banking Law & Practice (or such later version
thereof as may be in
effect at the time of issuance).
"ISSUER DOCUMENTS" means with respect to any Letter of Credit,
the
Letter of Credit Application, and any other document, agreement
and instrument
entered into by the L/C Issuer and the Borrower (or any
Subsidiary) or in favor
the L/C Issuer and relating to any such Letter of Credit.
"JOINT BOOK MANAGERS" means, collectively, BAS, GSCP and CSFB
in
their capacities as Joint Book Managers for the Facilities.
"JOINT LEAD ARRANGERS" means, collectively, BAS and GSCP in
their
capacities as Joint Lead Arrangers for the Facilities.
"LAWS" means, collectively, all international, foreign,
Federal,
state and local statutes, treaties, rules, regulations,
ordinances, codes and
administrative or judicial precedents or authorities, including
the
interpretation or administration thereof by any Governmental
Authority charged
with the enforcement, interpretation or administration thereof,
and all
applicable administrative orders, licenses, authorizations and
permits of, any
Governmental Authority, in each case having the force of
law.
"L/C ADVANCE" means, with respect to each Revolving Credit
Lender,
such Lender's funding of its participation in any L/C Borrowing
in accordance
with its Applicable Percentage.
"L/C BORROWING" means an extension of credit resulting from
a
drawing under any Letter of Credit which has not been reimbursed
on the date
when made or refinanced as a Revolving Credit Borrowing.
21
<PAGE>
"L/C CREDIT EXTENSION" means, with respect to any Letter of
Credit,
the issuance thereof, the extension of the expiry date thereof,
or the increase
of the amount thereof.
"L/C ISSUER" means Bank of America or another Lender acceptable
to
the Administrative Agent and the Borrower, in each case in its
capacity as
issuer of Letters of Credit hereunder, or any successor issuer
of Letters of
Credit hereunder.
"L/C OBLIGATIONS" means, as at any date of determination,
the
aggregate amount available to be drawn under all outstanding
Letters of Credit
plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings.
For purposes of computing the amount available to be drawn under
any Letter of
Credit, the amount of such Letter of Credit shall be determined
in accordance
with Section 1.06. For all purposes of this Agreement, if on any
date of
determination a Letter of Credit has expired by its terms but
any amount may
still be drawn thereunder by reason of the operation of Rule
3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the
amount so
remaining available to be drawn.
"LENDER" has the meaning specified in the introductory
paragraph
hereto.
"LENDING OFFICE" means, as to any Lender, the office or offices
of
such Lender described as such in such Lender's Administrative
Questionnaire, or
such other office or offices as a Lender may from time to time
notify the
Borrower and the Administrative Agent.
"LETTER OF CREDIT" means any standby letter of credit issued
hereunder.
"LETTER OF CREDIT APPLICATION" means an application and
agreement
for the issuance or amendment of a Letter of Credit in the form
from time to
time in use by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is seven
days
prior to the Maturity Date then in effect for the Revolving
Credit Facility (or,
if such day is not a Business Day, the next preceding Business
Day).
"LETTER OF CREDIT FEE" has the meaning specified in Section
2.03(i).
"LETTER OF CREDIT SUBLIMIT" means an amount equal to
$15,000,000.
The Letter of Credit Sublimit is part of, and not in addition
to, the Revolving
Credit Facility.
"LIBO RATE" has the meaning set forth in the definition of
Eurodollar Rate.
"LIEN" means any mortgage, pledge, hypothecation,
assignment,
deposit arrangement, encumbrance, lien (statutory or other),
charge, or
preference, priority or other security interest or preferential
arrangement in
the nature of a security interest of any kind or nature
whatsoever (including
any conditional sale or other title retention agreement, any
easement, right of
way or other encumbrance on title to real property, and any
financing lease
having substantially the same economic effect as any of the
foregoing).
"LOAN" means an extension of credit by a Lender to the
Borrower
under Article II in the form of a Term B Loan or a Revolving
Credit Loan.
22
<PAGE>
"LOAN DOCUMENTS" means, collectively, (a) for purposes of
this
Agreement and the Notes and any amendment, supplement or other
modification
hereof or thereof and for all other purposes other than for
purposes of the
Guaranty and the Collateral Documents, (i) this Agreement, (ii)
the Notes, (iii)
the Guaranty, (iv) the Collateral Documents, (v) the Fee Letters
and (vi) each
Issuer Document and (b) for purposes of the Guaranty and the
Collateral
Documents, (i) this Agreement, (ii) the Notes, (iii) the
Guaranty, (iv) the
Collateral Documents, (v) each Issuer Document, (vi) the Fee
Letters and (vii)
each Secured Hedge Agreement.
"LOAN PARTIES" means, collectively, the Borrower and each
Guarantor.
"MATERIAL ADVERSE EFFECT" means a material adverse effect upon
(a)
the operations, business, properties, liabilities (actual or
contingent),
condition (financial or otherwise) or prospects of Holdings and
its
Subsidiaries, taken as a whole; (b) the rights and remedies of
the
Administrative Agent or the Lenders under the Loan Documents;
(c) the ability of
the Loan Parties, taken as a whole, to perform their obligations
under the Loan
Documents; or (d) a material adverse effect upon the legality,
validity, binding
effect or enforceability against any Loan Party of any Loan
Document to which it
is a party.
"MATERIAL CONTRACT" means, with respect to any Person, each
contract
to which such Person is a party for which breach could
reasonably be expected to
have a Material Adverse Effect.
"MATURITY DATE" means (a) with respect to the Revolving
Credit
Facility, the earlier of (i) January 10, 2010 and (ii) the date
of termination
in whole of the Revolving Credit Commitments and the Letter of
Credit
Commitments pursuant to Section 2.05 or 8.02, and (b) with
respect to the Term B
Facility, the earlier of (i) January 10, 2011 and (ii) the date
of termination
in whole of the Term B Commitments pursuant to Section 2.05 or
8.02.
"MAXIMUM RATE" has the meaning specified in Section 10.09.
"MEASUREMENT PERIOD" means, at any date of determination, the
most
recently completed four consecutive fiscal quarters of Holdings
ending on or
prior to such date.
"MOODY'S" means Moody's Investors Service, Inc. and any
successor
thereto.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type
described in Section 4001(a)(3) of ERISA, to which the Borrower
or any ERISA
Affiliate makes or is obligated to make contributions, or during
the preceding
five plan years, has made or been obligated to make
contributions.
"NET CASH PROCEEDS" means:
(a) with respect to any Disposition by any Loan Party or any
of
its Subsidiaries (other than a Disqualified Subsidiary), or
any
Extraordinary Receipt received or paid to the account of any
Loan Party or
any of its Subsidiaries (other than a Disqualified Subsidiary),
the
excess, if any, of (i) the sum of cash and Cash Equivalents
received in
connection with such transaction (including any cash or Cash
Equivalents
received by way of deferred payment pursuant to, or by
monetization of, a
note
23
<PAGE>
receivable or otherwise, but only as and when so received) over
(ii) the
sum of (A) the principal amount of any Indebtedness that is
secured by the
applicable asset and that is required to be repaid in connection
with such
transaction (other than Indebtedness under the Loan Documents),
together
with any premium or penalty and interest payable with respect
thereto, (B)
the reasonable and customary out-of-pocket fees and expenses
incurred by
such Loan Party or such Subsidiary in connection with such
transaction
(including without limitation legal, title and transfer and
recording tax
expenses, commissions, and any expenses incurred in preparing
the relevant
property for sale) (C) income taxes paid or reasonably estimated
to be
actually payable within two years of the date of the receipt of
such
proceeds as a result of any gain recognized in connection
therewith and
(D) the aggregate amount of reserves taken by Holdings or any of
its
Subsidiaries in accordance with GAAP against indemnification
obligations
incurred in connection with such Disposition; and
(b) with respect to the sale or issuance of any Equity Interest
by
Holdings or any of its Subsidiaries, or the incurrence or
issuance of any
Indebtedness by Holdings or any of its Subsidiaries, in each
case other
than to a Loan Party the excess of (i) the sum of the cash and
Cash
Equivalents received in connection with such transaction over
(ii) the
underwriting discounts and commissions, and other reasonable and
customary
out-of-pocket fees and expenses, incurred by Holdings or such
Subsidiary
in connection therewith.
"NON-FINANCIAL ENTITY" has the meaning specified in Section
10.06(a).
"NOTE" means a Term B Note or a Revolving Credit Note, as
the
context may require.
"NOTES DISCHARGE" has the meaning specified in the
introductory
paragraphs hereto.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising
under any Loan
Document or otherwise with respect to any Loan or Letter of
Credit, whether
direct or indirect (including those acquired by assumption),
absolute or
contingent, due or to become due, now existing or hereafter
arising and
including interest and fees that accrue under the terms of the
Loan Documents
after the commencement by or against any Loan Party or any
Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person
as the debtor in
such proceeding, regardless of whether such interest and fees
are allowed claims
in such proceeding. Without limiting the generality of the
foregoing, the
Obligations of the Loan Parties under the Loan Documents include
(a) the
obligation to pay principal, interest, Letter of Credit
commissions, charges,
expenses, fees, attorneys' fees and disbursements, indemnities
and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation of any
Loan Party to reimburse any amount in respect of any of the
foregoing that any
Lender, in its sole discretion, may elect to pay or advance on
behalf of such
Loan Party.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any
corporation,
the certificate or articles of incorporation and the bylaws (or
equivalent or
comparable constitutive
24
<PAGE>
documents with respect to any non-U.S. jurisdiction); (b) with
respect to any
limited liability company, the certificate or articles of
formation or
organization and operating agreement; and (c) with respect to
any partnership,
joint venture, trust or other form of business entity, the
partnership, joint
venture or other applicable agreement of formation or
organization and any
agreement, instrument, filing or notice with respect thereto
filed in connection
with its formation or organization with the applicable
Governmental Authority in
the jurisdiction of its formation or organization and, if
applicable, any
certificate or articles of formation or organization of such
entity.
"OTHER TAXES" means all present or future stamp or documentary
taxes
or any other excise or property taxes, charges or similar levies
arising from
any payment made hereunder or under any other Loan Document or
from the
execution, delivery or enforcement of, or otherwise with respect
to, this
Agreement or any other Loan Document.
"OUTSTANDING AMOUNT" means (i) with respect to Term Loans
and
Revolving Credit Loans on any date, the aggregate outstanding
principal amount
thereof after giving effect to any borrowings and prepayments or
repayments of
Term B Loans and Revolving Credit Loans, as the case may be,
occurring on such
date; and (ii) with respect to any L/C Obligations on any date,
the amount of
such L/C Obligations on such date after giving effect to any L/C
Credit
Extension occurring on such date and any other changes in the
aggregate amount
of the L/C Obligations as of such date, including as a result of
any
reimbursements by the Borrower of Unreimbursed Amounts.
"PARTICIPANT" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as
such
term is defined in Section 3(2) of ERISA), other than a
Multiemployer Plan, that
is subject to Title IV of ERISA and is sponsored or maintained
by the Borrower
or any ERISA Affiliate or to which the Borrower or any ERISA
Affiliate
contributes or has an obligation to contribute, or in the case
of a multiple
employer or other plan described in Section 4064(a) of ERISA,
has made
contributions at any time during the immediately preceding five
plan years.
"PERMITTED ACQUISITION" has the meaning specified in Section
7.03(k).
"PERSON" means any natural person, corporation, limited
liability
company, trust, joint venture, association, company,
partnership, Governmental
Authority or other entity.
"PLAN" means any "employee benefit plan" (as such term is
defined in
Section 3(3) of ERISA) established by the Borrower or, with
respect to any such
plan that is subject to Section 412 of the Code or Title IV of
ERISA, any ERISA
Affiliate.
"PLAN OF REORGANIZATION" has the meaning specified in the
introductory paragraphs hereto.
"PLEDGED DEBT" has the meaning specified in Section 1(d)(iv) of
the
Security Agreement.
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"PLEDGED EQUITY" has the meaning specified in Section 1(d)(iii)
of
the Security Agreement.
"PREPAYMENT MAXIMUM SENIOR SECURED LEVERAGE RATIO" means (a) at
any
time prior to the High Yield Issuance Date, 3.50:1.00 and (b) at
any time from
and after the High Yield Issuance Date, a ratio 25 bps lower
than the maximum
Consolidated Senior Secured Leverage Ratio then permitted
pursuant to Section
7.10(c).
"QUALIFIED PREFERRED STOCK" means preferred stock of Holdings
that
(a) has no mandatory redemption feature exercisable on a date
earlier than 180
days after the Maturity Date, (b) has no requirements for the
payment of
dividends or other distributions in cash on a date earlier than
180 days after
the Maturity Date and (c) contains covenants, if any, no more
restrictive than
those customarily found in a high-yield debt offering.
"REDUCTION AMOUNT" has the meaning set forth in Section
2.04(b)(ix).
"REGISTER" has the meaning specified in Section 10.06(c).
"RELATED PARTIES" means, with respect to any Person, such
Person's
Affiliates and the partners, directors, officers, employees,
agents and advisors
of such Person and of such Person's Affiliates.
"REPORTABLE EVENT" means any of the events set forth in
Section
4043(c) of ERISA, other than events for which the 30-day notice
period has been
waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a
Borrowing, conversion or continuation of Term Loans or Revolving
Credit Loans, a
Committed Loan Notice and (b) with respect to an L/C Credit
Extension, a Letter
of Credit Application.
"REQUIRED LENDERS" means, as of any date of determination,
Lenders
having more than 50% of the sum of the (a) Total Outstandings
(with the
aggregate amount of each Revolving Credit Lender's risk
participation and funded
participation in L/C Obligations being deemed "held" by such
Revolving Credit
Lender for purposes of this definition) and (b) aggregate unused
Revolving
Credit Commitments; provided that the unused Revolving Credit
Commitment of, and
the portion of the Total Outstandings held or deemed held by,
any Defaulting
Lender shall be excluded for purposes of making a determination
of Required
Lenders.
"REQUIRED PRINCIPAL PAYMENTS" means, with respect to any Person
for
any period, the sum of all regularly scheduled principal
payments or redemptions
of outstanding funded debt made during such period.
"REQUIRED REVOLVING LENDERS" means, as of any date of
determination,
Revolving Credit Lenders holding more than 50% of the sum of the
(a) Total
Revolving Credit Outstandings (with the aggregate amount of each
Revolving
Credit Lender's risk participation and funded participation in
L/C Obligations
being deemed "held" by such Revolving Credit Lender for purposes
of this
definition) and (b) aggregate unused Revolving Credit
Commitments; provided that
the unused Revolving Credit Commitment of, and the portion of
the Total
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Revolving Credit Outstandings held or deemed held by, any
Defaulting Lender
shall be excluded for purposes of making a determination of
Required Revolving
Lenders.
"RESPONSIBLE OFFICER" means any of the chief executive
officer,
president, chief financial officer, chief operations officer,
treasurer,
assistant treasurer or controller of a Loan Party. Any document
delivered
hereunder that is signed by a Responsible Officer of a Loan
Party shall be
conclusively presumed to have been authorized by all necessary
corporate,
partnership and/or other action on the part of such Loan Party
and such
Responsible Officer shall be conclusively presumed to have acted
on behalf of
such Loan Party.
"RESTRICTED PAYMENT" means any dividend or other
distribution
(whether in cash, securities or other property) with respect to
any capital
stock or other Equity Interest of any Person or any of its
Subsidiaries, or any
payment (whether in cash, securities or other property),
including any sinking
fund or similar deposit, on account of the purchase, redemption,
retirement,
defeasance, acquisition, cancellation or termination of any such
capital stock
or other Equity Interest, or on account of any return of capital
to any Person's
stockholders, partners or members (or the equivalent of any
thereof), or on
account of any option, warrant or other right to acquire any
such dividend or
other distribution or payment.
"REVOLVING CREDIT BORROWING" means a borrowing consisting of
simultaneous Revolving Credit Loans of the same Type and, in the
case of
Eurodollar Rate Loans, having the same Interest Period made by
each of the
Revolving Credit Lenders pursuant to Section 2.01(b).
"REVOLVING CREDIT COMMITMENT" means, as to each Revolving
Credit
Lender, its obligation to (a) make Revolving Credit Loans to the
Borrower
pursuant to Section 2.01(b) and (b) purchase participations in
L/C Obligations,
in an aggregate principal amount at any one time outstanding not
to exceed the
amount set forth opposite such Lender's name on Schedule 2.01
under the caption
"Revolving Credit Commitment" or opposite such caption in the
Assignment and
Assumption pursuant to which such Lender becomes a party hereto,
as applicable,
as such amount may be adjusted from time to time in accordance
with this
Agreement.
"REVOLVING CREDIT FACILITY" means, at any time, the aggregate
amount
of the Revolving Credit Lenders' Revolving Credit Commitments at
such time, as
the same may be increased in accordance with Section 2.13.
"REVOLVING CREDIT LENDER" means, at any time, any Lender that
has a
Revolving Credit Commitment at such time.
"REVOLVING CREDIT LOAN" has the meaning specified in Section
2.01(b).
"REVOLVING CREDIT NOTE" means a promissory note made by the
Borrower
payable to the order of any Revolving Credit Lender evidencing
Revolving Credit
Loans made by such Revolving Credit Lender, in substantially the
form of Exhibit
C-2.
"S&P" means Standard & Poor's Ratings Services, a
division of The
McGraw-Hill Companies, Inc. and any successor thereto.
27
<PAGE>
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal
functions.
"SECURED HEDGE AGREEMENT" means any interest rate Swap
Contract
required or permitted under Article VI or VII that is entered
into by and
between the Borrower and any Hedge Bank.
"SECURED OBLIGATIONS" has the meaning specified in Section 2 of
the
Security Agreement.
"SECURED PARTIES" means, collectively, the Administrative Agent,
the
Lenders, the L/C Issuer, the Hedge Banks, each co-agent or
sub-agent appointed
by the Administrative Agent from time to time pursuant to
Section 9.05, and the
other Persons the Obligations owing to which are or are
purported to be secured
by the Collateral under the terms of the Collateral
Documents.
"SECURITY AGREEMENT" has the meaning specified in Section
4.01(a)(iii).
"SECURITY AGREEMENT SUPPLEMENT" has the meaning specified in
Section
22(b) of the Security Agreement.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on
any
date of determination, that on such date (a) the fair value of
the property of
such Person is greater than the total amount of liabilities,
including, without
limitation, contingent liabilities, of such Person, (b) the
present fair salable
value of the assets of such Person is not less than the amount
that will be
required to pay the probable liability of such Person on its
debts as they
become absolute and matured, (c) such Person does not intend to,
and does not
believe that it will, incur debts or liabilities beyond such
Person's ability to
pay such debts and liabilities as they mature and (d) such
Person is not engaged
in business or a transaction, and is not about to engage in
business or a
transaction, for which such Person's property would constitute
an unreasonably
small capital. The amount of contingent liabilities at any time
shall be
computed as the amount that, in the light of all the facts and
circumstances
existing at such time, represents the amount that can reasonably
be expected to
become an actual or matured liability.
"SPC" has the meaning specified in Section 10.06(h).
"SUBSIDIARY" of a Person means a corporation, partnership,
joint
venture, limited liability company or other business entity of
which a majority
of the shares of securities or other ownership interests having
ordinary voting
power for the election of directors, managers or other governing
body (other
than securities or interests having such power only by reason of
the happening
of a contingency) are at the time beneficially owned, or the
management of which
is otherwise controlled, directly, or indirectly through one or
more
intermediaries, or both, by such Person. All references herein
to a "Subsidiary"
or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries
of Holdings
(unless otherwise specified), but shall exclude (x) the Excluded
Subsidiaries
and (y) until such time as Holdings beneficially owns, directly
or indirectly,
shares of securities or other ownership interests having the
power to elect a
majority of the directors, managers or other governing body
(other than
securities or interests having such power only by reason of the
happening of a
contingency) of a Designated Entity, such Designated Entity.
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"SWAP CONTRACT" means (a) any and all rate swap transactions,
basis
swaps, credit derivative transactions, forward rate
transactions, commodity
swaps, commodity options, forward commodity contracts, equity or
equity index
swaps or options, bond or bond price or bond index swaps or
options or forward
bond or forward bond price or forward bond index transactions,
interest rate
options, forward foreign exchange transactions, cap
transactions, floor
transactions, collar transactions, currency swap transactions,
cross-currency
rate swap transactions, currency options, spot contracts, or any
other similar
transactions or any combination of any of the foregoing
(including any options
to enter into any of the foregoing), whether or not any such
transaction is
governed by or subject to any master agreement, and (b) any and
all transactions
of any kind, and the related confirmations, which are subject to
the terms and
conditions of, or governed by, any form of master agreement
published by the
International Swaps and Derivatives Association, Inc., any
International Foreign
Exchange Master Agreement, or any other master agreement (any
such master
agreement, together with any related schedules, a "MASTER
AGREEMENT"), including
any such obligations or liabilities under any Master
Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more
Swap
Contracts, after taking into account the effect of any legally
enforceable
netting agreement relating to such Swap Contracts, (a) for any
date on or after
the date such Swap Contracts have been closed out and
termination value(s)
determined in accordance therewith, such termination value(s),
and (b) for any
date prior to the date referenced in clause (a), the amount(s)
determined as the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or
more mid-market or other readily available quotations provided
by any recognized
dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a
Lender).
"SYNTHETIC DEBT" means, with respect to any Person as of any
date of
determination thereof, all Obligations of such Person in respect
of transactions
entered into by such Person that are intended to function
primarily as a
borrowing of funds (including any minority interest transactions
that function
primarily as a borrowing) but are not otherwise included in the
definition of
"Indebtedness" or as a liability on the consolidated balance
sheet of such
Person and its Subsidiaries in accordance with GAAP.
"SYNTHETIC LEASE OBLIGATION" means the monetary obligation of
a
Person under (a) a so-called synthetic, off-balance sheet or tax
retention
lease, or (b) an agreement for the use or possession of property
(including sale
and leaseback transactions), in each case, creating obligations
that do not
appear on the balance sheet of such Person but which, upon the
application of
any Debtor Relief Laws to such Person, would be characterized as
the
indebtedness of such Person (without regard to accounting
treatment).
"TAXES" means all present or future taxes, levies, imposts,
duties,
deductions, withholdings, assessments, fees or other charges
imposed by any
Governmental Authority, including any interest, additions to tax
or penalties
applicable thereto.
"TERM B BORROWING" means a borrowing consisting of simultaneous
Term
B Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the
same Interest Period made by each of the Term B Lenders pursuant
to Section
2.01(a).
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<PAGE>
"TERM B COMMITMENT" means, as to each Term B Lender, its
obligation
to make Term B Loans to the Borrower pursuant to Section 2.01(a)
in an aggregate
principal amount at any one time outstanding not to exceed the
amount set forth
opposite such Lender's name on Schedule 2.01 under the caption
"Term B
Commitment" or opposite such caption in the Assignment and
Assumption pursuant
to which such Lender becomes a party hereto, as applicable, as
such amount may
be adjusted from time to time in accordance with this
Agreement.
"TERM B FACILITY" means, at any time, (i) on or prior to the
Closing
Date, the aggregate amount of the Term B Commitments at such
time and (ii)
thereafter the aggregate principal amount of the Term B Loans of
all Term B
Lenders outstanding at such time, as the same may be increased
in accordance
with Section 2.13.
"TERM B LENDER" means, at any time, (i) on or prior to the
Closing
Date, any Lender that has a Term B Commitment at such time and
(ii) at any time
after the Closing Date, any Lender that holds Term B Loans at
such time.
"TERM B LOAN" means an advance made by any Term B Lender under
the
Term B Facility.
"TERM B NOTE" means a promissory note made by the Borrower in
favor
of a Term B Lender, evidencing Term B Loans made by such Term B
Lender in
substantially the form of Exhibit C-1 hereto.
"THRESHOLD AMOUNT" means $10,000,000.
"TOTAL OUTSTANDINGS" means the aggregate Outstanding Amount of
all
Loans and all L/C Obligations.
"TOTAL REVOLVING CREDIT OUTSTANDINGS" means the aggregate
Outstanding Amount of all Revolving Credit Loans and L/C
Obligations.
"TRANSACTION" means, collectively, (a) the Notes Discharge, (b)
the
repayment of the FCC Indebtedness, (c) the entering into by the
Loan Parties and
their applicable Subsidiaries of the Loan Documents to which
they are or are
intended to be a party, and (d) the payment of the fees and
expenses incurred in
connection with the consummation of the foregoing.
"TYPE" means, with respect to a Loan, its character as a Base
Rate
Loan or a Eurodollar Rate Loan.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension
Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value
of that Pension Plan's assets, as determined using the most
recent actuarial
value of the Plan prepared in accordance with the assumptions
used for funding
the Pension Plan pursuant to Section 412 of the Code for the
applicable plan
year.
"UNITED STATES" and "U.S." mean the United States of
America.
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<PAGE>
"UNREIMBURSED AMOUNT" has the meaning specified in Section
2.03(c)(i).
"U.S. LOAN PARTY" means any Loan Party that is organized under
the
laws of one of the states of the United States of America and
that is not a CFC.
1.02 Other Interpretive Provisions. With reference to this
Agreement and each other Loan Document, unless otherwise
specified herein or in
such other Loan Document:
(a) The definitions of terms herein shall apply equally to
the
singular and plural forms of the terms defined. Whenever the
context may
require, any pronoun shall include the corresponding masculine,
feminine
and neuter forms. The words "include," "includes" and
"including" shall be
deemed to be followed by the phrase "without limitation." The
word "will"
shall be construed to have the same meaning and effect as the
word
"shall." Unless the context requires otherwise, (i) any
definition of or
reference to any agreement, instrument or other document
(including any
Organization Document) shall be construed as referring to such
agreement,
instrument or other document as from time to time amended,
supplemented or
otherwise modified (subject to any restrictions on such
amendments,
supplements or modifications set forth herein or in any other
Loan
Document), (ii) any reference herein to any Person shall be
construed to
include such Person's successors and assigns, (iii) the words
"herein,"
"hereof" and "hereunder," and words of similar import when used
in any
Loan Document, shall be construed to refer to such Loan Document
in its
entirety and not to any particular provision thereof, (iv) all
references
in a Loan Document to Articles, Sections, Exhibits and Schedules
shall be
construed to refer to Articles and Sections of, and Exhibits and
Schedules
to, the Loan Document in which such references appear, (v) any
reference
to any law shall include all statutory and regulatory
provisions
consolidating, amending replacing or interpreting such law and
any
reference to any law or regulation shall, unless otherwise
specified,
refer to such law or regulation as amended, modified or
supplemented from
time to time, (vi) the words "asset" and "property" shall be
construed to
have the same meaning and effect and to refer to any and all
tangible and
intangible assets and properties, including cash, securities,
accounts and
contract rights, (vii) the words "knowledge" or "knows," when
used with
respect to any Loan Party, means (A) the actual knowledge of a
Responsible
Officer of such Loan Party and (B) knowledge that would be
obtained by a
Responsible Officer of such Loan Party exercising customary
diligence,
(viii) the words "in all material respects" or words of similar
import
when used herein with respect to the truth or correctness of
representations and warranties mean, with respect to any
representation
that is by its terms qualified as to materiality, in all
respects, and
with respect to any representation that is by its terms not
qualified as
to materiality, in all material respects and (ix) the components
of the
definition of "Solvent" and "Solvency" set forth herein shall be
construed
in accordance with applicable state fraudulent conveyance laws
and with
Section 548 of the Bankruptcy Code of the United States.
(b) In the computation of periods of time from a specified date
to
a later specified date, the word "from" means "from and
including;" the
words "to" and "until" each mean "to but excluding;" and the
word
"through" means "to and including."
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<PAGE>
(c) Section headings herein and in the other Loan Documents
are
included for convenience of reference only and shall not affect
the
interpretation of this Agreement or any other Loan Document.
1.03 Accounting Terms. (a) Generally. All accounting terms
not
specifically or completely defined herein shall be construed in
conformity with,
and all financial data (including financial ratios and other
financial
calculations) required to be submitted pursuant to this
Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis,
as in effect
from time to time, applied in a manner consistent with that used
in preparing
the Audited Financial Statements, except as otherwise
specifically prescribed
herein.
(b) Changes in GAAP. If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set
forth in any
Loan Document, and either the Borrower or the Required Lenders
shall so request,
the Administrative Agent, the Lenders and the Borrower shall
negotiate in good
faith to amend such ratio or requirement to preserve the
original intent thereof
in light of such change in GAAP (subject to the approval of the
Required
Lenders); provided that, until so amended, (i) such ratio or
requirement shall
continue to be computed in accordance with GAAP prior to such
change therein and
(ii) the Borrower shall provide to the Administrative Agent and
the Lenders
financial statements and other documents required under this
Agreement or as
reasonably requested hereunder setting forth a reconciliation
between
calculations of such ratio or requirement made before and after
giving effect to
such change in GAAP.
1.04 Rounding. Any financial ratios required to be maintained
by
the Borrower pursuant to this Agreement shall be calculated by
dividing the
appropriate component by the other component, carrying the
result to one place
more than the number of places by which such ratio is expressed
herein and
rounding the result up or down to the nearest number (with a
rounding-up if
there is no nearest number).
1.05 Times of Day. Unless otherwise specified, all
references
herein to times of day shall be references to Eastern time
(daylight or
standard, as applicable).
1.06 Letter of Credit Amounts. Unless otherwise specified,
all
references herein to the amount of a Letter of Credit at any
time shall be
deemed to be the stated amount of such Letter of Credit in
effect at such time;
provided, however, that with respect to any Letter of Credit
that, by its terms
or the terms of any Issuer Document related thereto, provides
for one or more
automatic increases in the stated amount thereof, the amount of
such Letter of
Credit shall be deemed to be the maximum stated amount of such
Letter of Credit
after giving effect to all such increases, whether or not such
maximum stated
amount is in effect at such time.
1.07 Currency Equivalents Generally. Any amount specified in
this
Agreement (other than in Articles II, IX and X) or any of the
other Loan
Documents to be in Dollars shall also include the equivalent of
such amount in
any currency other than Dollars, such equivalent amount to be
determined at the
rate of exchange quoted by Bank of America in New York at the
close of business
on the Business Day immediately preceding any date of
determination thereof, to
prime banks in New York, New York for the spot purchase in the
New York foreign
exchange market of such amount in U.S. dollars with such other
currency.
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ARTICLE II
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 The Loans. (a) The Term B Borrowings. Subject to the terms
and
conditions set forth herein, each Term B Lender severally agrees
to make a
single loan to the Borrower on the Closing Date or, in the case
of any
Incremental Facility consisting of Term B Commitments, the
Increase Effective
Date in respect of such Incremental Facility, in each case in an
amount not to
exceed such Term B Lender's Term B Commitment at such time. The
Term B Borrowing
shall consist of Term B Loans made simultaneously by the Term B
Lenders in
accordance with their respective Term B Commitments. Amounts
borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed.
Term B Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.
(b) The Revolving Credit Borrowings. Subject to the terms
and
conditions set forth herein, each Revolving Credit Lender
severally agrees to
make loans (each such loan, a "REVOLVING CREDIT LOAN") to the
Borrower from time
to time, on any Business Day during the Availability Period, in
an aggregate
amount not to exceed at any time outstanding the amount of such
Lender's
Revolving Credit Commitment; provided, however, that after
giving effect to any
Revolving Credit Borrowing, (i) the Total Revolving Credit
Outstandings shall
not exceed the Revolving Credit Facility at such time and (ii)
the aggregate
Outstanding Amount of the Revolving Credit Loans of any Lender
plus such
Revolving Credit Lender's Applicable Revolving Credit Percentage
of the
Outstanding Amount of all L/C Obligations shall not exceed such
Revolving Credit
Lender's Revolving Credit Commitment. Within the limits of each
Lender's
Revolving Credit Commitment, and subject to the other terms and
conditions
hereof, the Borrower may borrow under this Section 2.01(b),
prepay under Section
2.04, and reborrow under this Section 2.01(b). Revolving Credit
Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided
herein.
2.02 Borrowings, Conversions and Continuations of Loans. (a)
Each
Term B Borrowing, each Revolving Credit Borrowing, each
conversion of Term B
Loans or Revolving Credit Loans from one Type to the other, and
each
continuation of Eurodollar Rate Loans shall be made upon the
Borrower's
irrevocable notice to the Administrative Agent, which may be
given by telephone.
Each such notice must be received by the Administrative Agent
not later than
12:00 p.m. (i) three Business Days prior to the requested date
of any Borrowing
of, conversion to or continuation of Eurodollar Rate Loans or of
any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of
any Borrowing of Base Rate Loans. Each telephonic notice by the
Borrower
pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the
Administrative Agent of a written Committed Loan Notice,
appropriately completed
and signed by a Responsible Officer of the Borrower. Each
Borrowing of,
conversion to or continuation of Eurodollar Rate Loans shall be
in a principal
amount of $3,000,000 or a whole multiple of $1,000,000 in excess
thereof. Except
as provided in Section 2.03(c), each Borrowing of or conversion
to Base Rate
Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000
in excess thereof. Each Committed Loan Notice (whether
telephonic or written)
shall specify (i) whether the Borrower is requesting a Term B
Borrowing, a
Revolving Credit Borrowing, a conversion of Term B Loans or
Revolving Credit
Loans from one Type to the other, or a continuation of
Eurodollar Rate Loans,
(ii) the requested date of the Borrowing, conversion or
continuation, as the
case may be (which shall be a Business
33
<PAGE>
Day), (iii) the principal amount of Loans to be borrowed,
converted or
continued, (iv) the Type of Loans to be borrowed or to which
existing Term B
Loans or Revolving Credit Loans are to be converted, and (v)
with respect to
Eurodollar Rate Loans, the duration of the Interest Period with
respect thereto.
If the Borrower fails to specify a Type of Loan in a Committed
Loan Notice or if
the Borrower fails to give a timely notice requesting a
conversion or
continuation, then the applicable Term B Loans or Revolving
Credit Loans shall
be made as, or converted to, Base Rate Loans. Any such automatic
conversion to
Base Rate Loans shall be effective as of the last day of the
Interest Period
then in effect with respect to the applicable Eurodollar Rate
Loans. If the
Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar
Rate Loans in any such Committed Loan Notice, but fails to
specify an Interest
Period, it will be deemed to have specified an Interest Period
of one month.
(b) Following receipt of a Committed Loan Notice, the
Administrative Agent shall promptly notify each Lender of the
amount of its
Applicable Percentage under the applicable Facility of the
applicable Term B
Loans or Revolving Credit Loans, and if no timely notice of a
conversion or
continuation is provided by the Borrower, the Administrative
Agent shall notify
each Lender of the details of any automatic conversion to Base
Rate Loans
described in Section 2.02(a). In the case of a Term B Borrowing
or a Revolving
Credit Borrowing, each Appropriate Lender shall make the amount
of its Loan
available to the Administrative Agent in immediately available
funds at the
Administrative Agent's Office not later than 1:00 p.m. on the
Business Day
specified in the applicable Committed Loan Notice. Upon
satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such
Borrowing is the
initial Credit Extension, Section 4.01), the Administrative
Agent shall make all
funds so received available to the Borrower in like funds as
received by the
Administrative Agent either by (i) crediting the account of the
Borrower on the
books of Bank of America with the amount of such funds or (ii)
wire transfer of
such funds, in each case in accordance with instructions
provided to (and
reasonably acceptable to) the Administrative Agent by the
Borrower; provided,
however, that if, on the date a Committed Loan Notice with
respect to a
Revolving Credit Borrowing is given by the Borrower, there are
L/C Borrowings
outstanding, then the proceeds of such Revolving Credit
Borrowing first shall be
applied to the payment in full of any such L/C Borrowings, and
second, shall be
made available to the Borrower as provided above.
(c) Except as otherwise provided herein, a Eurodollar Rate
Loan
may be continued or converted only on the last day of an
Interest Period for
such Eurodollar Rate Loan. During the existence of a Default, no
Loans may be
requested as, converted to or continued as Eurodollar Rate Loans
without the
consent of the Required Lenders.
(d) The Administrative Agent shall promptly notify the
Borrower
and the Lenders of the interest rate applicable to any Interest
Period for
Eurodollar Rate Loans upon determination of such interest rate.
At any time that
Base Rate Loans are outstanding, the Administrative Agent shall
notify the
Borrower and the Lenders of any change in Bank of America's
prime rate used in
determining the Base Rate promptly following the public
announcement of such
change.
(e) After giving effect to all Term B Borrowings, all
conversions
of Term B Loans from one Type to the other, and all
continuations of Term B
Loans as the same Type, there shall not be more than eight (8)
Interest Periods
in effect in respect of the Term B Facility.
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After giving effect to all Revolving Credit Borrowings, all
conversions of
Revolving Credit Loans from one Type to the other, and all
continuations of
Revolving Credit Loans as the same Type, there shall not be more
than ten (10)
Interest Periods in effect in respect of the Revolving Credit
Facility.
(f) Anything in this Section 2.02 to the contrary
notwithstanding,
the Borrower may not select (i) Eurodollar Rate for the initial
Credit Extension
hereunder and (ii) Interest Periods for Eurodollar Rate Loans
that have a
duration of more than one month during the period from the date
hereof to the
60th day after the date hereof (or such earlier date as shall be
specified in
its sole discretion by the Administrative Agent in a written
notice to the
Borrower and the Lenders).
2.03 Letters of Credit. (a) The Letter of Credit Commitment.
(i)
Subject to the terms and conditions set forth herein, (A) each
L/C Issuer
agrees, in reliance upon the agreements of the Revolving Credit
Lenders set
forth in this Section 2.03, (1) from time to time on any
Business Day during the
period from the Closing Date until the Letter of Credit
Expiration Date, to
issue Letters of Credit for the account of the Borrower, and to
amend Letters of
Credit previously issued by it, in accordance with Section
2.03(b), and (2) to
honor drawings under the Letters of Credit; and (B) the
Revolving Credit Lenders
severally agree to participate in Letters of Credit issued for
the account of
the Borrower and any drawings thereunder; provided that after
giving effect to
any L/C Credit Extension with respect to any Letter of Credit,
(x) the Total
Revolving Credit Outstandings shall not exceed the Revolving
Credit Facility at
such time, (y) the aggregate Outstanding Amount of the Revolving
Credit Loans of
any Revolving Credit Lender, plus such Lender's Applicable
Revolving Credit
Percentage of the Outstanding Amount of all L/C Obligations at
such time shall
not exceed such Lender's Revolving Credit Commitment, and (z)
the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of
Credit Sublimit.
Each request by the Borrower for the issuance or amendment of a
Letter of Credit
shall be deemed to be a representation by the Borrower that the
L/C Credit
Extension so requested complies with the conditions set forth in
the proviso to
the preceding sentence. Within the foregoing limits, and subject
to the terms
and conditions hereof, the Borrower's ability to obtain Letters
of Credit shall
be fully revolving, and accordingly the Borrower may, during the
foregoing
period, obtain Letters of Credit to replace Letters of Credit
that have expired
or that have been drawn upon and reimbursed.
(ii) No L/C Issuer shall issue any Letter of Credit if:
(A) the expiry date of such requested Letter of Credit would
occur
more than twelve months after the date of issuance, unless the
Required
Revolving Lenders have approved such expiry date; or
(B) the expiry date of such requested Letter of Credit would
occur
after the Letter of Credit Expiration Date, unless all the
Revolving
Credit Lenders have approved such expiry date.
(iii) No L/C Issuer shall be under any obligation to issue
any
Letter of Credit if:
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(A) any order, judgment or decree of any Governmental Authority
or
arbitrator shall by its terms purport to enjoin or restrain such
L/C
Issuer from issuing such Letter of Credit, or any Law applicable
to such
L/C Issuer or any guideline, directed duty, request or directive
(whether
or not having the force of law) from or agreement with any
Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit,
or
request that such L/C Issuer refrain from, the issuance of
letters of
credit generally or such Letter of Credit in particular or shall
impose
upon such L/C Issuer with respect to such Letter of Credit
any
restriction, reserve or capital requirement (for which such L/C
Issuer is
not otherwise compensated hereunder) not in effect on the
Closing Date, or
shall impose upon such L/C Issuer any unreimbursed loss, cost or
expense
which was not applicable on the Closing Date and which such L/C
Issuer in
good faith deems material to it;
(B) the issuance of such Letter of Credit would violate any
Laws
or guideline, directed duty or request of or agreement with
any
Governmental Authority (whether or not having the force of law)
or one or
more policies of such L/C Issuer;
(C) except as otherwise agreed by the Administrative Agent
and
such L/C Issuer, such Letter of Credit is in an initial stated
amount less
than $100,000;
(D) such Letter of Credit is to be denominated in a currency
other
than Dollars;
(E) such Letter of Credit contains any provisions for
automatic
reinstatement of the stated amount after any drawing thereunder;
or
(F) a default of any Lender's obligations to fund under
Section
2.03(c) exists or any Lender is at such time a Defaulting
Lender
hereunder, unless such L/C Issuer has entered into
satisfactory
arrangements with the Borrower or such Lender to eliminate such
L/C
Issuer's risk with respect to such Lender.
(iv) No L/C Issuer shall amend any Letter of Credit if such
L/C
Issuer would not be permitted at such time to issue such Letter
of Credit in its
amended form under the terms hereof.
(v) No L/C Issuer shall be under any obligation to amend any
Letter of Credit if (A) such L/C Issuer would have no obligation
at such time to
issue such Letter of Credit in its amended form under the terms
hereof, or (B)
the beneficiary of such Letter of Credit does not accept the
proposed amendment
to such Letter of Credit.
(vi) Each L/C Issuer shall act on behalf of the Revolving
Credit
Lenders with respect to any Letters of Credit issued by it and
the documents
associated therewith, and each L/C Issuer shall have all of the
benefits and
immunities (A) provided to the Administrative Agent in Article
IX with respect
to any acts taken or omissions suffered by such L/C Issuer in
connection with
Letters of Credit issued by it or proposed to be issued by it
and Issuer
Documents pertaining to such Letters of Credit as fully as if
the term
"Administrative Agent" as used in Article IX included such L/C
Issuer with
respect to such acts or omissions, and (B) as additionally
provided herein with
respect to each L/C Issuer.
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<PAGE>
(b) Procedures for Issuance and Amendment of Letters of
Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon
the request of the Borrower delivered to the applicable L/C
Issuer (with a copy
to the Administrative Agent) in the form of a Letter of Credit
Application,
appropriately completed and signed by a Responsible Officer of
the Borrower.
Such Letter of Credit Application must be received by the
applicable L/C Issuer
and the Administrative Agent not later than 12:00 p.m. at least
two Business
Days (or such later date and time as the Administrative Agent
and the applicable
L/C Issuer may agree in a particular instance in their sole
discretion) prior to
the proposed issuance date or date of amendment, as the case may
be. In the case
of a request for an initial issuance of a Letter of Credit, such
Letter of
Credit Application shall specify in form and detail satisfactory
to the
applicable L/C Issuer: (A) the proposed issuance date of the
requested Letter of
Credit (which shall be a Business Day); (B) the amount thereof;
(C) the expiry
date thereof; (D) the name and address of the beneficiary
thereof; (E) the
documents to be presented by such beneficiary in case of any
drawing thereunder;
(F) the full text of any certificate to be presented by such
beneficiary in case
of any drawing thereunder; and (G) such other matters as the
applicable L/C
Issuer may require. In the case of a request for an amendment of
any outstanding
Letter of Credit, such Letter of Credit Application shall
specify in form and
detail satisfactory to the applicable L/C Issuer (A) the Letter
of Credit to be
amended; (B) the proposed date of amendment thereof (which shall
be a Business
Day); (C) the nature of the proposed amendment; and (D) such
other matters as
the applicable L/C Issuer may require. Additionally, the
Borrower shall furnish
to the applicable L/C Issuer and the Administrative Agent such
other documents
and information pertaining to such requested Letter of Credit
issuance or
amendment, including any Issuer Documents, as the applicable L/C
Issuer or the
Administrative Agent may require.
(ii) Promptly after receipt of any Letter of Credit
Application,
the applicable L/C Issuer will confirm with the Administrative
Agent (by
telephone or in writing) that the Administrative Agent has
received a copy of
such Letter of Credit Application from the Borrower and, if not,
such L/C Issuer
will provide the Administrative Agent with a copy thereof.
Unless such L/C
Issuer has received written notice from any Revolving Credit
Lender, the
Administrative Agent or any Loan Party, at least one Business
Day prior to the
requested date of issuance or amendment of the applicable Letter
of Credit, that
one or more applicable conditions contained in Article IV shall
not then be
satisfied, then, subject to the terms and conditions hereof,
such L/C Issuer
shall, on the requested date, issue a Letter of Credit for the
account of the
Borrower or enter into the applicable amendment, as the case may
be, in each
case in accordance with such L/C Issuer's usual and customary
business
practices. Immediately upon the issuance of each Letter of
Credit, each
Revolving Credit Lender shall be deemed to, and hereby
irrevocably and
unconditionally agrees to, purchase from such L/C Issuer a risk
participation in
such Letter of Credit in an amount equal to the product of such
Revolving Credit
Lender's Applicable Revolving Credit Percentage times the amount
of such Letter
of Credit.
(iii) Promptly after its delivery of any Letter of Credit or
any
amendment to a Letter of Credit to an advising bank with respect
thereto or to
the beneficiary thereof, the applicable L/C Issuer will also
deliver to the
Borrower and the Administrative Agent a true and complete copy
of such Letter of
Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i)
Upon receipt from the beneficiary of any Letter of Credit of any
notice of a
drawing under such Letter
37
<PAGE>
of Credit, the applicable L/C Issuer shall notify the Borrower
and the
Administrative Agent of the date and amount thereof. Not later
than 12:00 p.m.
on the date of any payment by the applicable L/C Issuer under a
Letter of Credit
(each such date, an "HONOR DATE"), the Borrower shall reimburse
such L/C Issuer
through the Administrative Agent in an amount equal to the
amount of such
drawing. If the Borrower fails to so reimburse such L/C Issuer
by such time, the
Administrative Agent shall promptly notify each Revolving Credit
Lender of the
Honor Date, the amount of the unreimbursed drawing (the
"UNREIMBURSED AMOUNT"),
and the amount of such Revolving Credit Lender's Applicable
Revolving Credit
Percentage thereof. In such event, the Borrower shall be deemed
to have
requested a Revolving Credit Borrowing of Base Rate Loans to be
disbursed on the
Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the
minimum and multiples specified in Section 2.02 for the
principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion
of the Revolving
Credit Commitments and the conditions set forth in Section 4.02
(other than the
delivery of a Committed Loan Notice). Any notice given by an L/C
Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by
telephone if immediately confirmed in writing; provided that the
lack of such an
immediate confirmation shall not affect the conclusiveness or
binding effect of
such notice.
(ii) Each Revolving Credit Lender shall upon any notice pursuant
to
Section 2.03(c)(i) make funds available to the Administrative
Agent for the
account of the applicable L/C Issuer at the Administrative
Agent's Office in an
amount equal to its Applicable Revolving Credit Percentage of
the Unreimbursed
Amount not later than 1:00 p.m. on the Business Day specified in
such notice by
the Administrative Agent, whereupon, subject to the provisions
of Section
2.03(c)(iii), each Revolving Credit Lender that so makes funds
available shall
be deemed to have made a Base Rate Loan to the Borrower in such
amount. The
Administrative Agent shall remit the funds so received to the
applicable L/C
Issuer.
(iii) With respect to any Unreimbursed Amount that is not
fully
refinanced by a Revolving Credit Borrowing of Base Rate Loans
because the
conditions set forth in Section 4.02 (other than delivery by the
Borrower of a
Committed Loan Notice) cannot be satisfied or for any other
reason, the Borrower
shall be deemed to have incurred from the applicable L/C Issuer
an L/C Borrowing
in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C
Borrowing shall be due and payable on demand (together with
interest) and shall
bear interest at the Default Rate. In such event, each Revolving
Credit Lender's
payment to the Administrative Agent for the account of the
applicable L/C Issuer
pursuant to Section 2.03(c)(ii) shall be deemed payment in
respect of its
participation in such L/C Borrowing and shall constitute an L/C
Advance from
such Lender in satisfaction of its participation obligation
under this Section
2.03.
(iv) Until each Revolving Credit Lender funds its Revolving
Credit
Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the applicable
L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect
of such Lender's Applicable Revolving Credit Percentage of such
amount shall be
solely for the account of such L/C Issuer.
(v) Each Revolving Credit Lender's obligation to make
Revolving
Credit Loans or L/C Advances to reimburse any L/C Issuer for
amounts drawn under
Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute
and unconditional and shall not be
38
<PAGE>
affected by any circumstance, including (A) any setoff,
counterclaim,
recoupment, defense or other right which such Lender may have
against such L/C
Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other
occurrence, event or
condition, whether or not similar to any of the foregoing;
provided, however,
that each Revolving Credit Lender's obligation to make Revolving
Credit Loans
pursuant to this Section 2.03(c) is subject to the conditions
set forth in
Section 4.02 (other than delivery by the Borrower of a Committed
Loan Notice ).
No such making of an L/C Advance shall relieve or otherwise
impair the
obligation of the Borrower to reimburse the applicable L/C
Issuer for the amount
of any payment made by such L/C Issuer under any Letter of
Credit, together with
interest as provided herein.
(vi) If any Revolving Credit Lender fails to make available to
the
Administrative Agent for the account of the applicable L/C
Issuer any amount
required to be paid by such Lender pursuant to the foregoing
provisions of this
Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the applicable L/C
Issuer shall be entitled to recover from such Lender (acting
through the
Administrative Agent), on demand, such amount with interest
thereon for the
period from the date such payment is required to the date on
which such payment
is immediately available to such L/C Issuer at a rate per annum
equal to the
greater of the Federal Funds Rate and a rate determined by such
L/C Issuer in
accordance with banking industry rules on interbank
compensation. A certificate
of the applicable L/C Issuer submitted to any Revolving Credit
Lender (through
the Administrative Agent) with respect to any amounts owing
under this Section
2.03(c)(vi) shall be conclusive absent manifest error.
(d) Repayment of Participations. (i) At any time after any
L/C
Issuer has made a payment under any Letter of Credit and has
received from any
Revolving Credit Lender such Lender's L/C Advance in respect of
such payment in
accordance with Section 2.03(c), if the Administrative Agent
receives for the
account of such L/C Issuer any payment in respect of the related
Unreimbursed
Amount or interest thereon (whether directly from the Borrower
or otherwise,
including proceeds of Cash Collateral applied thereto by the
Administrative
Agent), the Administrative Agent will distribute to such Lender
its Applicable
Revolving Credit Percentage thereof (appropriately adjusted, in
the case of
interest payments, to reflect the period of time during which
such Lender's L/C
Advance was outstanding) in the same funds as those received by
the
Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the
account of any L/C Issuer pursuant to Section 2.03(c)(i) is
required to be
returned under any of the circumstances described in Section
10.05 (including
pursuant to any settlement entered into by such L/C Issuer in
its discretion),
each Revolving Credit Lender shall pay to the Administrative
Agent for the
account of such L/C Issuer its Applicable Revolving Credit
Percentage thereof on
demand of the Administrative Agent, plus interest thereon from
the date of such
demand to the date such amount is returned by such Lender, at a
rate per annum
equal to the Federal Funds Rate from time to time in effect. The
obligations of
the Lenders under this clause shall survive the payment in full
of the
Obligations and the termination of this Agreement.
(e) Obligations Absolute. The obligation of the Borrower to
reimburse each L/C Issuer for each drawing under each Letter of
Credit issued by
such L/C Issuer and to repay
39
<PAGE>
each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement
under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or
other right that the Borrower or any Subsidiary may have at any
time
against any beneficiary or any transferee of such Letter of
Credit (or any
Person for whom any such beneficiary or any such transferee may
be
acting), any L/C Issuer or any other Person, whether in
connection with
this Agreement, the transactions contemplated hereby or by such
Letter of
Credit or any agreement or instrument relating thereto, or any
unrelated
transaction;
(iii) any draft, demand, certificate or other document
presented
under such Letter of Credit proving to be forged, fraudulent,
invalid or
insufficient in any respect or any statement therein being
untrue or
inaccurate in any respect; or any loss or delay in the
transmission or
otherwise of any document required in order to make a drawing
under such
Letter of Credit;
(iv) any payment by any L/C Issuer under such Letter of
Credit
against presentation of a draft or certificate that does not
strictly
comply with the terms of such Letter of Credit; or any payment
made by any
L/C Issuer under any Letter of Credit to any Person purporting
to be a
trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of
creditors, liquidator, receiver or other representative of or
successor to
any beneficiary or any transferee of such Letter of Credit,
including any
arising in connection with any proceeding under any Debtor
Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not
similar to any of the foregoing, including any other
circumstance that
might otherwise constitute a defense available to, or a
discharge of, the
Borrower or any of its Subsidiaries.
In no event shall the foregoing be construed to excuse an L/C
Issuer
from liability to the Borrower to the extent of any direct
damages suffered by
the Borrower that are found in a final, non-appealable judgment
by a court of
competent jurisdiction to have resulted from the gross
negligence or willful
misconduct of such L/C Issuer. The Borrower shall promptly
examine a copy of
each Letter of Credit and each amendment thereto that is
delivered to it and, in
the event of any claim of noncompliance with the Borrower's
instructions or
other irregularity, the Borrower will immediately notify the
applicable L/C
Issuer. The Borrower shall be conclusively deemed to have waived
any such claim
against the applicable L/C Issuer and its correspondents unless
such notice is
given as aforesaid.
(f) Role of L/C Issuer. Each Lender and the Borrower agree
that,
in paying any drawing under a Letter of Credit, no L/C Issuer
shall have any
responsibility to obtain any document (other than any sight
draft, certificates
and documents expressly required by the Letter of Credit) or to
ascertain or
inquire as to the validity or accuracy of any such document or
the authority of
the Person executing or delivering any such document. None of
any L/C Issuer,
the Administrative Agent, any of their respective Related
Parties nor any
correspondent, participant
40
<PAGE>
or assignee of any L/C Issuer shall be liable to any Lender for
(i) any action
taken or omitted in connection herewith at the request or with
the approval of
the Revolving Credit Lenders or the Required Revolving Lenders,
as applicable;
(ii) any action taken or omitted in the absence of gross
negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity
or
enforceability of any document or instrument related to any
Letter of Credit or
Issuer Document. The Borrower hereby assumes all risks of the
acts or omissions
of any beneficiary or transferee with respect to its use of any
Letter of
Credit; provided, however, that this assumption is not intended
to, and shall
not, preclude the Borrower's pursuing such rights and remedies
as it may have
against the beneficiary or transferee at law or under any other
agreement. None
of any L/C Issuer, the Administrative Agent, any of their
respective Related
Parties nor any correspondent, participant or assignee of any
L/C Issuer shall
be liable or responsible for any of the matters described in
clauses (i) through
(v) of Section 2.03(e); provided, however, that anything in such
clauses to the
contrary notwithstanding, the Borrower may have a claim against
an L/C Issuer,
and such L/C Issuer may be liable to the Borrower, to the
extent, but only to
the extent, of any direct, as opposed to consequential or
exemplary, damages
suffered by the Borrower which the Borrower proves were caused
by such L/C
Issuer's willful misconduct or gross negligence or such L/C
Issuer's willful
failure to pay under any Letter of Credit after the presentation
to it by the
beneficiary of a sight draft and certificate(s) strictly
complying with the
terms and conditions of a Letter of Credit. In furtherance and
not in limitation
of the foregoing, any L/C Issuer may accept documents that
appear on their face
to be in order, without responsibility for further
investigation, regardless of
any notice or information to the contrary, and no L/C Issuer
shall be
responsible for the validity or sufficiency of any instrument
transferring or
assigning or purporting to transfer or assign a Letter of Credit
or the rights
or benefits thereunder or proceeds thereof, in whole or in part,
which may prove
to be invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative
Agent,
(i) if an L/C Issuer has honored any full or partial drawing
request under any
Letter of Credit and such drawing has resulted in an L/C
Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation
for any reason
remains outstanding, the Borrower shall, in each case,
immediately Cash
Collateralize the then Outstanding Amount of all L/C
Obligations. Sections 2.04
and 8.02(c) set forth certain additional requirements to deliver
Cash Collateral
hereunder. For purposes of this Section 2.03, Section 2.04 and
Section 8.02(c).
"CASH COLLATERALIZE" means to pledge and deposit with or deliver
to the
Administrative Agent, for the benefit of each L/C Issuer and the
Lenders, as
collateral for the L/C Obligations, cash or deposit account
balances pursuant to
documentation in form and substance satisfactory to the
Administrative Agent and
each L/C Issuer (which documents are hereby consented to by the
Lenders).
Derivatives of such term have corresponding meanings. The
Borrower hereby grants
to the Administrative Agent, for the benefit of each L/C Issuer
and the Lenders,
a security interest in all such cash, deposit accounts and all
balances therein
and all proceeds of the foregoing. Cash Collateral shall be
maintained in a Cash
Collateral Account. If, at any time that the Borrower is under
an obligation
hereunder to Cash Collateralize the aggregate Outstanding Amount
of L/C
Obligations, the Administrative Agent reasonably determines that
any funds held
as Cash Collateral are subject to any right or claim of any
Person other than
the Administrative Agent or that the total amount of such funds
is less than the
aggregate Outstanding Amount of all L/C Obligations, then the
Borrower will,
forthwith upon demand by the Administrative Agent, pay to the
Administrative
Agent, as additional funds to be deposited as Cash Collateral,
an amount equal
to the excess of (x) such aggregate Outstanding Amount over (y)
the total amount
of funds, if any, then held as
41
<PAGE>
Cash Collateral that the Administrative Agent reasonably
determines to be free
and clear of any such right and claim. Upon the drawing of any
Letter of Credit
for which funds are on deposit as Cash Collateral, such funds
shall be applied,
to the extent permitted under applicable law, to reimburse the
L/C Issuers or
the Revolving Credit Lenders, as applicable.
(h) Applicability of ISP98. Unless otherwise expressly agreed
by
the L/C Issuer and the Borrower when a Letter of Credit is
issued, the rules of
the ISP shall apply to each Letter of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent for the account of each Revolving Credit
Lender in
accordance with its Applicable Percentage a Letter of Credit fee
(the "LETTER OF
CREDIT FEE") for each Letter of Credit equal to the Applicable
Rate in respect
of Eurodollar Rate Loans times the daily amount available to be
drawn under such
Letter of Credit. For purposes of computing the daily amount
available to be
drawn under any Letter of Credit, the amount of such Letter of
Credit shall be
determined in accordance with Section 1.06. Letter of Credit
Fees shall be (i)
computed on a quarterly basis in arrears and (ii) due and
payable on the first
Business Day after the end of each March, June, September and
December,
commencing with the first such date to occur after the issuance
of such Letter
of Credit, on the Letter of Credit Expiration Date and
thereafter on demand. If
there is any change in the Applicable Rate during any quarter,
the daily amount
available to be drawn under each Letter of Credit shall be
computed and
multiplied by the Applicable Rate separately for each period
during such quarter
that such Applicable Rate was in effect. Notwithstanding
anything to the
contrary contained herein, upon the request of the Required
Revolving Lenders,
while any Event of Default exists and is continuing, all Letter
of Credit Fees
shall accrue at the Default Rate.
(j) Fronting Fee and Documentary and Processing Charges Payable
to
L/C Issuer. The Borrower shall pay directly to each L/C Issuer
for its own
account a fronting fee with respect to each Letter of Credit
issued by such L/C
Issuer, at a rate per annum equal to 0.25%, computed on the
daily amount
available to be drawn under such Letter of Credit and on a
quarterly basis in
arrears, and due and payable on the first Business Day after the
end of each
March, June, September and December, commencing with the first
such date to
occur after the issuance of such Letter of Credit, on the Letter
of Credit
Expiration Date and thereafter on demand. For purposes of
computing the daily
amount available to be drawn under any Letter of Credit, the
amount of such
Letter of Credit shall be determined in accordance with Section
1.06. In
addition, the Borrower shall pay directly to each L/C Issuer for
its own account
the customary issuance, presentation, amendment and other
processing fees, and
other standard costs and charges, of such L/C Issuer relating to
letters of
credit as from time to time in effect. Such customary fees and
standard costs
and charges are due and payable on demand and are
nonrefundable.
(k) Conflict with Issuer Documents. In the event of any
conflict
between the terms hereof and the terms of any Issuer Document,
the terms hereof
shall control.
2.04 Prepayments. (a) Optional. The Borrower may, upon notice
to
the Administrative Agent (which may be given by telephone if
confirmed promptly
thereafter in writing), at any time or from time to time
voluntarily prepay
Loans in whole or in part without
42
<PAGE>
premium or penalty; provided that (A) such notice must be
received by the
Administrative Agent not later than 12:00 p.m. (1) three
Business Days prior to
any date of prepayment of Eurodollar Rate Loans and (2) on the
date of
prepayment of Base Rate Loans; (B) any prepayment of Eurodollar
Rate Loans shall
be in a principal amount of $3,000,000 or a whole multiple of
$1,000,000 in
excess thereof; and (3) any prepayment of Base Rate Loans shall
be in a
principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof
or, in each case, if less, the entire principal amount thereof
then outstanding.
Each such notice shall specify the date and amount of such
prepayment and the
Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify
each Lender of its receipt of each such notice, and of the
amount of such
Lender's ratable portion of such prepayment (based on such
Lender's Applicable
Percentage in respect of the relevant Facility. If such notice
is given by the
Borrower, the Borrower shall make such prepayment and the
payment amount
specified in such notice shall be due and payable on the date
specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by
all accrued
interest thereon, together with any additional amounts required
pursuant to
Section 3.05. Each prepayment of the outstanding Term B pursuant
to this Section
2.04(a) shall be applied to the principal repayment installments
thereof on a
pro rata basis, and each such prepayment shall be paid to the
Lenders in
accordance with their respective Applicable Percentages in
respect of each of
the relevant Facilities. In the event that the Borrower fails to
specify the
Loans to which any such prepayment shall be applied, such
prepayment shall be
applied first to the Term B Facility and to the principal
repayment installments
thereof on a pro rata basis, and second to the Revolving Credit
Loans
outstanding at such time on a pro rata basis. In the event that
the Borrower
fails to specify the Type of Loan to which such prepayment shall
be applied,
prepayment shall be applied first to repay outstanding Base Rate
Loans to the
fullest extent thereof, and second to repay outstanding
Eurodollar Rate Loans,
each in a manner which minimizes to the extent possible any
amounts payable by
the Borrower under Section 3.05.
(b) Mandatory. (i) Within five Business Days after financial
statements have been delivered pursuant to Section 6.01(a)
(commencing with the
delivery of financial statements for the Fiscal Year ended
December 31, 2006)
and the related Compliance Certificate has been delivered
pursuant to Section
6.02(b), if the Consolidated Senior Secured Leverage Ratio for
the most recently
ended Fiscal Year is not lower than the Prepayment Maximum
Senior Secured
Leverage Ratio, then the Borrower shall prepay an aggregate
principal amount of
Loans equal to 50% (or such lesser portion as shall be
sufficient to reduce the
Consolidated Senior Secured Leverage Ratio to the Prepayment
Maximum Senior
Secured Leverage Ratio) of Excess Cash Flow for the fiscal year
covered by such
financial statements.
(ii) If Holdings or any of its Subsidiaries (other than any of
the
Excluded Subsidiaries or any Disqualified Subsidiary) Disposes
of any property
or assets (other than any Disposition of any property or assets
permitted by
Section 7.05(a), (b), (c), (d), (f), (g), (h) or (i)(x) (but
only (1) with
respect to Section 7.05(h), to the extent that Net Cash Proceeds
received under
such Section 7.05(h) do not exceed $2,000,000 in any Fiscal Year
and (2) with
respect to Section 7.05(c), to the extent of Net Cash Proceeds
from (x)
subleases, (y) leases of cellsite towers and (z) other leases
that do not exceed
in the aggregate for this clause (z) $1,000,000 in any fiscal
year)) which in
the aggregate results in the realization by any Loan Party or
such Subsidiary of
Net Cash Proceeds, the Borrower shall prepay an aggregate
principal amount of
Loans equal to 100% of all Net Cash Proceeds received therefrom
within two
Business Days after receipt thereof by any Loan Party or such
Subsidiary;
provided, however, that, with respect
43
<PAGE>
to any Net Cash Proceeds realized (x) under a Disposition
described in this
Section 2.04(b)(ii) (other than Net Cash Proceeds in excess of
$20,000,000
realized under a disposition permitted under Section 7.05(j)) or
(y) proceeds of
insurance and condemnation awards described in Section
2.04(b)(v), at the option
of the Borrower (as elected by the Borrower in writing to the
Administrative
Agent within two (2) Business Days after the date of such
Disposition or the
receipt of such insurance proceeds or condemnation awards), and
so long as no
Event of Default shall have occurred and be continuing, the
Borrower may:
(A) retain all or any portion of such Net Cash Proceeds for
reinvestment in operating assets (including, without limitation,
FCC
Licenses) so long as within twelve (12) months following receipt
of such
Net Cash Proceeds, (1) a definitive agreement for the purchase
of such
assets with such proceeds shall have been entered into or, if
such
proposed replacement asset is an FCC License to be acquired
through an FCC
auction, Holdings or such Subsidiary or a Designated Entity
partially
owned by Holdings or any of its Subsidiaries shall have placed a
bid with
respect thereto in an FCC auction (in each case, as certified by
the
Borrower in writing to the Administrative Agent), and (2) such
purchase
shall have been consummated or such auction bid shall have been
successful
(as certified by the Borrower in writing to the Administrative
Agent);
provided further that if, at the end of such twelve (12)-month
period, (x)
the definitive agreement referred to in clause (1) above has
been executed
and delivered by the parties thereto and the only conditions
remaining to
consummation of the transactions contemplated by such agreement
are
customary conditions to closing which the Borrower reasonably
believes
will be satisfied on a timely basis, including the receipt of
approval
from the FCC for transfer of any relevant license, or (y) in the
case of
an FCC License auction, the relevant auction has not concluded
or the
auction bid of Holdings, a Subsidiary or a Designated Entity
partially
owned by Holdings or a Subsidiary has been successful but the
relevant FCC
License has not yet been transferred to Holdings, such
Subsidiary or such
Designated Entity, then such twelve (12)-month period shall be
extended by
up to an additional six (6) months; provided further, however,
that any
Net Cash Proceeds not subject to such definitive agreement or
FCC auction
within such twelve (12)-month period or so reinvested at the end
of such
twelve (12)-month period (as extended, if applicable) shall be
applied
within two (2) Business Days to the prepayment of the Loans as
set forth
in this Section 2.04; or
(B) in the case of such Net Cash Proceeds received within
twelve
(12)-months after the Closing Date, retain such Net Cash
Proceeds to the
extent that the sum of such Net Cash Proceeds plus all other Net
Cash
Proceeds received during such period does not exceed the
aggregate cash
purchase price of assets or FCC Licenses acquired by any Loan
Party since
the Closing Date but prior to the receipt of such Net Cash
Proceeds in a
transaction otherwise permitted under this Agreement plus the
reasonable
and customary fees and expenses incurred in connection with
such
transaction; provided, that if, at the end of such twelve
(12)-month
period, a definitive agreement for the sale of assets that will
yield such
Net Cash Proceeds by the applicable Loan Party shall have been
entered
into (as certified by the Borrower in writing to the
Administrative Agent)
and the only conditions remaining to consummation of the
transactions
contemplated by such agreement are customary conditions to
closing which
the Borrower reasonably believes will be satisfied on a timely
basis,
including the receipt of approval from the FCC for
44
<PAGE>
transfer of any relevant license, then such twelve (12)-month
period shall
be extended by up to an additional six (6) months; provided
further that
the Net Cash Proceeds of Dispositions not subject to such a
definitive
agreement within such twelve (12)-month period or the assets
with respect
to which are not disposed of within such twelve (12)-month
period (as
extended, if applicable) shall be applied to the prepayment of
the Loans
as set forth in this Section 2.04 within two Business Days after
the
expiration of such period, unless the Borrower notifies the
Administrative
Agent of its intent to retain such Net Cash Proceeds for
reinvestment in
accordance with Section 2.04(b)(ii)(A).
(iii) Upon the sale or issuance by Holdings or any of its
Subsidiaries of any of its Equity Interests (other than (A) any
sales or
issuances within the first eighteen (18) months following the
Closing Date, (B)
any sales or issuances after the first eighteen (18) months
following the
Closing Date to the extent that the proceeds thereof are applied
toward
acquisitions or acquisition-related build-outs occurring within
twelve (12)
months before or after receipt of such proceeds, (C) exercises
of options,
warrants and other rights to acquire equity interests by
directors, officers or
employees of Holdings or any of its Subsidiaries not to exceed
$5,000,000 in the
aggregate in any fiscal year, (D) any sales or issuances of
Equity Interests to
a Loan Party and (E) other sales and issuances not in excess of
$5,000,000 in
the aggregate in any fiscal year), if at such time the
Consolidated Senior
Secured Leverage Ratio is not lower than the Prepayment Maximum
Senior Secured
Leverage Ratio, then the Borrower shall prepay an aggregate
principal amount of
Loans equal to 50% (or such lesser portion as shall be
sufficient to reduce the
Consolidated Senior Secured Leverage Ratio to the Prepayment
Maximum Senior
Secured Leverage Ratio) of all Net Cash Proceeds received
therefrom within two
Business Days after receipt thereof (or, if applicable, after
the end of the
twelve (12)-month period referred to in subclause (B) of this
Section
2.04(b)(iii)) by any Loan Party or such Subsidiary.
(iv) Upon the incurrence or issuance by Holdings or any of
its
Subsidiaries of any Indebtedness (other than Indebtedness
expressly permitted to
be incurred or issued pursuant to clause (A) or (B) of Section
7.02(a) or
pursuant to Section 7.02(b)), if at such time the Consolidated
Senior Secured
Leverage Ratio is not at least 25 bps lower than the maximum
Consolidated Senior
Secured Leverage Ratio permitted at such time pursuant to
Section 7.10(c), then
the Borrower shall prepay an aggregate principal amount of Loans
equal to 50%
(or such lesser portion as shall be sufficient to reduce the
Consolidated Senior
Secured Leverage Ratio to a ratio at least 25 bps lower than the
maximum
Consolidated Senior Secured Leverage Ratio permitted at such
time pursuant to
Section 7.10(c)) of all Net Cash Proceeds received therefrom
within two Business
Days after receipt thereof by the Borrower or such
Subsidiary.
(v) Upon any Extraordinary Receipt received by or paid to or
for
the account of Holdings or any of its Subsidiaries (other than a
Disqualified
Subsidiary), and not otherwise included in clause (ii), (iii) or
(iv) of this
Section 2.04(b), the Borrower shall prepay an aggregate
principal amount of
Loans equal to 100% of all Net Cash Proceeds received therefrom
within two
Business Days after receipt thereof by Holdings or such
Subsidiary.
(vi) If for any reason the Total Outstandings at any time
exceed
the Aggregate Commitments then in effect, the Borrower shall
immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an
aggregate amount equal
to such excess; provided, however, that the Borrower shall not
be required to
Cash Collateralize the L/C Obligations
45
<PAGE>
pursuant to this Section 2.04(b)(vi) unless after the prepayment
in full of the
Loans the Total Outstandings exceed the Aggregate Commitments
then in effect.
(vii) Each prepayment of Loans pursuant to this Section
2.04(b)
shall be applied, first, to the Term B Facility and to the
principal repayment
installments thereof on a pro rata basis and, thereafter, to the
Revolving
Credit Facility in the manner set forth in clause (viii) of this
Section
2.04(b). With respect to the Type of Loan to be prepaid, each
prepayment of Loan
pursuant to this Section 2.04(b) shall be applied first to repay
outstanding
Base Rate Loans to the fullest extent thereof, and second to
repay outstanding
Eurodollar Rate Loans, each in a manner that minimizes to the
extent possible
any amounts payable by the Borrower under Section 3.05.
(viii) Prepayments of the Revolving Credit Facility made
pursuant to
clause (i), (ii), (iii), (iv), (v) or (vi) of this Section
2.04(b), first, shall
be applied ratably to the outstanding Revolving Credit Loans and
the
Unreimbursed Obligations, second, shall be applied to prepay
Revolving Credit
Loans outstanding at such time until all such Revolving Credit
Loans are paid in
full and, third, shall be used to Cash Collateralize the
remaining L/C
Obligations; and, in the case of prepayments of the Revolving
Credit Facility
required pursuant to clause (i), (ii), (iii), (iv) or (v) of
this Section
2.04(b), the amount remaining, if any, after the prepayment in
full of all
Revolving Credit Loans and Unreimbursed Obligations outstanding
at such time and
the Cash Collateralization of the remaining L/C Obligations in
full (the sum of
such prepayment amounts, cash collateralization amounts and
remaining amount
being, collectively, the "REDUCTION AMOUNT") may be retained by
the Borrower for
use in the ordinary course of its business, and the Revolving
Credit Facility
shall be automatically and permanently reduced by the Reduction
Amount as set
forth in Section 2.05(b)(ii). Upon the drawing of any Letter of
Credit that has
been Cash Collateralized, the funds held as Cash Collateral
shall be applied
(without any further action by or notice to or from the Borrower
or any other
Loan Party) to reimburse the L/C Issuer or the Revolving Credit
Lenders, as
applicable.
2.05 Termination or Reduction of Commitments. (a) Optional.
The
Borrower may, upon notice to the Administrative Agent (which may
be given by
telephone if confirmed promptly thereafter in writing),
terminate the unused
portions of the Letter of Credit Sublimit or the unused
Revolving Credit
Commitments, or from time to time permanently reduce the unused
portions of the
Letter of Credit Sublimit or the unused Revolving Credit
Commitments, in each
case without premium or penalty; provided that (i) any such
notice shall be
received by the Administrative Agent not later than 12:00 p.m.
three Business
Days prior to the date of termination or reduction, (ii) any
such partial
reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of
$1,000,000 in excess thereof and (iii) the Borrower shall not
terminate or
reduce the unused portions of the Letter of Credit Sublimit or
the unused
Revolving Credit Commitments if, after giving effect thereto and
to any
concurrent prepayments hereunder, the Total Revolving Credit
Outstandings would
exceed the Revolving Credit Facility.
(b) Mandatory. (i) Subject to Section 2.13, the aggregate Term
B
Commitments shall be automatically and permanently reduced to
zero immediately
after the Term B Borrowing.
46
<PAGE>
(ii) The Revolving Credit Facility shall be automatically
and
permanently reduced on each date on which the prepayment of
Revolving Credit
Loans outstanding thereunder is required to be made pursuant to
Section
2.04(b)(i), (ii), (iii), (iv) or (v) by an amount equal to the
applicable
Reduction Amount.
(iii) If after giving effect to any reduction or termination
of
unused Revolving Credit Commitments under this Section 2.05, the
Letter of
Credit Sublimit exceeds the Revolving Credit Facility at such
time, the Letter
of Credit Sublimit shall be automatically reduced by the amount
of such excess.
(c) Application of Commitment Reductions; Payment of Fees.
The
Administrative Agent will promptly notify the Lenders of any
termination or
reduction of unused portions of the Letter of Credit Sublimit or
the unused
Revolving Credit Commitment under this Section 2.05. Upon any
reduction of the
unused Revolving Credit Commitments, the Revolving Credit
Commitment of each
Revolving Credit Lender shall be reduced by such Lender's
Applicable Revolving
Credit Percentage of such reduction amount. All fees accrued as
of the effective
date of any termination of the Commitments shall, insofar as
they relate to such
terminated Commitments, be paid on the effective date of such
termination.
(d) Reducing Revolving Credit Commitments. On each date set
forth
below, if the High Yield Issuance Date has not occurred and the
Consolidated
Senior Secured Leverage Ratio is higher than the ratio set forth
opposite such
date below, the Revolving Credit Commitments (as increased by
any increases in
the Revolving Credit Commitments pursuant to clause (i) of the
proviso to
Section 2.13(a)) shall be reduced by the amount set forth
opposite such date
below; provided that each such reduction shall be made net of
the aggregate
amount of all reductions to the Revolving Credit Facility
effected on or prior
to such date:
<TABLE>
<CAPTION>
Consolidated Senior Secured
Date Leverage Ratio Amount of Reduction
---- ---------------------------- -------------------
<S> <C> <C>
January 1, 2008 3.00:1.00 One-twelfth of the original
aggregate
Revolving Credit Commitments as so increased.
January 1, 2009 2.50:1.00 One-sixth of the original aggregate
amount
of the Revolving Credit Commitments as so
increased.
</TABLE>
47
<PAGE>
2.06 Repayment of Loans. (a) Term B Loans. The Borrower shall
repay
to the Administrative Agent for the ratable account of the Term
B Lenders the
aggregate principal amount of all Term B Loans outstanding on
the following
dates in the respective amounts set forth opposite such dates
(which amounts
shall be reduced as a result of the application of prepayments
in accordance
with the order of priority set forth in Section 2.05):
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
March 31, 2005 $ 1,250,000
June 30, 2005 $ 1,250,000
September 30, 2005 $ 1,250,000
December 31, 2005 $ 1,250,000
March 31, 2006 $ 1,250,000
June 30, 2006 $ 1,250,000
September 30, 2006 $ 1,250,000
December 31, 2006 $ 1,250,000
March 31, 2007 $ 1,250,000
June 30, 2007 $ 1,250,000
September 30, 2007 $ 1,250,000
December 31, 2007 $ 1,250,000
March 31, 2008 $ 1,250,000
June 30, 2008 $ 1,250,000
September 30, 2008 $ 1,250,000
December 31, 2008 $ 1,250,000
March 31, 2009 $ 1,250,000
June 30, 2009 $ 1,250,000
September 30, 2009 $ 1,250,000
December 31, 2009 $ 1,250,000
March 31, 2010 $118,750,000
June 30, 2010 $118,750,000
September 30, 2010 $118,750,000
December 31, 2010 $118,750,000
</TABLE>
provided, however, that the final principal repayment
installment of the Term B
Loans shall be repaid on the Maturity Date for the Term B
Facility and in any
event shall be in an amount equal to the aggregate principal
amount of all Term
B Loans outstanding on such date.
(b) Revolving Credit Loans. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving
Credit Lenders on
the Maturity Date for the Revolving Credit Facility the
aggregate principal
amount of all Revolving Credit Loans outstanding on such
date.
2.07 Interest.
(a) Subject to the provisions of Section 2.07(b), (i) each
Eurodollar Rate Loan under a Facility shall bear interest on the
outstanding
principal amount thereof for each Interest
48
<PAGE>
Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period
plus the Applicable Rate for such Facility and (ii) each Base
Rate Loan under a
Facility shall bear interest on the outstanding principal amount
thereof from
the applicable borrowing date at a rate per annum equal to the
Base Rate plus
the Applicable Rate for such Facility.
(b) (i) If any amount of principal of any Loan is not paid
when
due (without regard to any applicable grace periods), whether at
stated
maturity, by acceleration or otherwise, such amount shall
thereafter bear
interest at a fluctuating interest rate per annum at all times
equal to the
Default Rate to the fullest extent permitted by applicable
Laws.
(ii) If any amount (other than principal of any Loan) payable
by
the Borrower under any Loan Document is not paid when due
(without regard to any
applicable grace periods), whether at stated maturity, by
acceleration or
otherwise, then upon the request of the Required Lenders such
amount shall
thereafter bear interest at a fluctuating interest rate per
annum at all times
equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(iii) Upon the request of the Required Lenders, while any Event
of
Default exists and is continuing, the Borrower shall pay
interest on the
principal amount of all outstanding Obligations hereunder at a
fluctuating
interest rate per annum at all times equal to the Default Rate
to the fullest
extent permitted by applicable Laws.
(iv) Accrued and unpaid interest on past due amounts
(including
interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears
on
each Interest Payment Date applicable thereto and at such other
times as may be
specified herein. Interest hereunder shall be due and payable in
accordance with
the terms hereof before and after judgment, and before and after
the
commencement of any proceeding under any Debtor Relief Law.
2.08 Fees. In addition to certain fees described in Sections
2.03(i) and (j):
(a) Commitment Fee. The Borrower shall pay to the
Administrative
Agent for the account of each Revolving Credit Lender in
accordance with
its Applicable Revolving Credit Percentage, a commitment fee
equal to the
Applicable Fee Rate times the actual daily amount by which the
aggregate
Revolving Credit Commitments exceed the sum of (A) the
Outstanding Amount
of Revolving Credit Loans and (B) the Outstanding Amount of
L/C
Obligations; provided, however, that any commitment fee accrued
with
respect to any of the Commitments of a Defaulting Lender during
the period
prior to the time such Lender became a Defaulting Lender and
unpaid at
such time shall not be payable by the Borrower so long as such
Lender
shall be a Defaulting Lender except to the extent that such
commitment fee
shall otherwise have been due and payable by the Borrower prior
to such
time; and provided further that no commitment fee shall accrue
on any of
the Commitments of a Defaulting Lender so long as such Lender
shall be a
Defaulting Lender. The commitment fee shall accrue at all times
during the
Availability Period, including at any time during which one or
more of the
conditions in Article IV is not met, and shall be due and
payable
quarterly in arrears on the last
49
<PAGE>
Business Day of each March, June, September and December,
commencing with
the first such date to occur after the Closing Date, and on the
Maturity
Date for the Revolving Credit Facility. The commitment fee shall
be
calculated quarterly in arrears, and if there is any change in
the
Applicable Fee Rate during any quarter, the actual daily amount
shall be
computed and multiplied by the Applicable Fee Rate separately
for each
period during such quarter that such Applicable Fee Rate was in
effect.
(b) Other Fees. (i) The Borrower shall pay to the Joint Lead
Arrangers and the Administrative Agent for their own respective
accounts
fees in the amounts and at the times specified in the
Arrangement Fee
Letter. Such fees shall be fully earned when paid and shall not
be
refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Administrative Agent such
fees
as shall have been separately agreed upon in writing in the
amounts and at
the times so specified. Such fees shall be fully earned when
paid and
shall not be refundable for any reason whatsoever.
2.09 Computation of Interest and Fees. All computations of
interest
for Base Rate Loans when the Base Rate is determined by Bank of
America's "prime
rate" shall be made on the basis of a year of 365 or 366 days,
as the case may
be, and actual days elapsed. All other computations of fees and
interest shall
be made on the basis of a 360-day year and actual days elapsed
(which results in
more fees or interest, as applicable, being paid than if
computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the
day on which the
Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the
day on which the Loan or such portion is paid, provided that any
Loan that is
repaid on the same day on which it is made shall, subject to
Section 2.11(a),
bear interest for one day. Each determination by the
Administrative Agent of an
interest rate or fee hereunder shall be conclusive and binding
for all purposes,
absent manifest error.
2.10 Evidence of Debt. (a) The Credit Extensions made by
each
Lender shall be evidenced by one or more accounts or records
maintained by such
Lender and by the Administrative Agent in the ordinary course of
business. The
accounts or records maintained by the Administrative Agent and
each Lender shall
be conclusive absent manifest error of the amount of the Credit
Extensions made
by the Lenders to the Borrower and the interest and payments
thereon. Any
failure to so record or any error in doing so shall not,
however, limit or
otherwise affect the obligation of the Borrower hereunder to pay
any amount
owing with respect to the Obligations. In the event of any
conflict between the
accounts and records maintained by any Lender and the accounts
and records of
the Administrative Agent in respect of such matters, the
accounts and records of
the Administrative Agent (set forth in the Register) shall
control in the
absence of manifest error. Upon the request of any Lender made
through the
Administrative Agent, the Borrower shall execute and deliver to
such Lender
(through the Administrative Agent) a Note (but only to the
extent that the Loans
evidenced by such Note are not already evidenced by an existing
Note), which
shall evidence such Lender's Loans in addition to such accounts
or records. Each
Lender may attach schedules to its Note and endorse thereon the
date, Type (if
applicable), amount and maturity of its Loans and payments with
respect thereto.
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(b) In addition to the accounts and records referred to in
Section
2.10(a), each Lender and the Administrative Agent shall maintain
in accordance
with its usual practice accounts or records evidencing the
purchases and sales
by such Lender of participations in Letters of Credit. In the
event of any
conflict between the accounts and records maintained by the
Administrative Agent
and the accounts and records of any Lender in respect of such
matters, the
accounts and records of the Administrative Agent shall control
in the absence of
manifest error.
2.11 Payments Generally; Administrative Agent's Clawback.
(a)
General. All payments to be made by the Borrower shall be made
without condition
or deduction for any counterclaim, defense, recoupment or
setoff. Except as
otherwise expressly provided herein, all payments by the
Borrower hereunder
shall be made to the Administrative Agent, for the account of
the respective
Lenders to which such payment is owed, at the Administrative
Agent's Office in
Dollars and in immediately available funds not later than 2:00
p.m. on the date
specified herein. The Administrative Agent will promptly
distribute to each
Lender its Applicable Percentage in respect of the relevant
Facility (or other
applicable share as provided herein) of such payment in like
funds as received
by wire transfer to such Lender's Lending Office. All payments
received by the
Administrative Agent after 2:00 p.m. shall be deemed received on
the next
succeeding Business Day and any applicable interest or fee shall
continue to
accrue. If any payment to be made by the Borrower shall come due
on a day other
than a Business Day, payment shall be made on the next following
Business Day,
and such extension of time shall be reflected on computing
interest or fees, as
the case may be.
(b) (i) Funding by Lenders; Presumption by Administrative
Agent.
Unless the Administrative Agent shall have received notice from
a Lender prior
to the proposed date of any Borrowing that such Lender will not
make available
to the Administrative Agent such Lender's share of such
Borrowing, the
Administrative Agent may assume that such Lende
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