Exhibit 10.1
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EXECUTION COPY
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REVOLVING CREDIT AND GUARANTY AGREEMENT
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Among
MCLEODUSA INCORPORATED,
a Debtor and a
Debtor-in-Possession under Chapter 11 of the Bankruptcy Code
as Borrower
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and
THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,
Each a Debtor and a Debtor-in-Possession
under Chapter 11 of the Bankruptcy Code
as Guarantors
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and
THE LENDERS PARTY HERETO,
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent, Documentation Agent
and Collateral Agent
J.P. MORGAN SECURITIES INC.,
as Book Manager
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and
---
Lead Arranger
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Dated as of November 1, 2005
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
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(NY) 27011/089/DIPDOCS/dip.ca.doc
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SECTION 1.
DEFINITIONS................................................................................7
SECTION 1.01
Defined
Terms................................................................7
SECTION 1.02
Terms
Generally.............................................................24
SECTION 2.
AMOUNT AND TERMS OF
CREDIT................................................................24
SECTION 2.01
Commitments of the
Lenders..................................................24
SECTION 2.02
[Intentionally
Omitted].....................................................24
SECTION 2.03
Letters of
Credit...........................................................25
SECTION 2.04
Issuance....................................................................27
SECTION 2.05
Nature of Letter of Credit Obligations
Absolute.............................27
SECTION 2.06
Making of
Loans.............................................................28
SECTION 2.07
Repayment of Loans; Evidence of
Debt........................................29
SECTION 2.08
Interest on
Loans...........................................................29
SECTION 2.09
Default
Interest............................................................30
SECTION 2.10
Optional Termination or Reduction of
Commitment.............................30
SECTION 2.11
Alternate Rate of
Interest..................................................30
SECTION 2.12
Refinancing of
Loans........................................................30
SECTION 2.13
Mandatory Prepayment; Commitment Termination; Cash
Collateral...............31
SECTION 2.14
Optional Prepayment of Loans; Reimbursement of
Lenders......................32
SECTION 2.15
Reserve Requirements; Change in
Circumstances...............................34
SECTION 2.16
Change in
Legality..........................................................35
SECTION 2.17
Pro Rata Treatment,
etc.....................................................36
SECTION 2.18
Taxes.......................................................................36
SECTION 2.19
Certain
Fees................................................................37
SECTION 2.20
Commitment
Fee..............................................................37
SECTION 2.21
Letter of Credit
Fees.......................................................38
SECTION 2.22
Nature of
Fees..............................................................38
SECTION 2.23
Priority and
Liens..........................................................38
SECTION 2.24
Right of
Set-Off............................................................39
<PAGE>
SECTION 2.25
Security Interest in Letter of Credit Account and Escrow
Account............40
SECTION 2.26
Payment of
Obligations......................................................40
SECTION 2.27
No Discharge; Survival of
Claims............................................40
SECTION 2.28
Use of Cash
Collateral......................................................40
SECTION 3.
REPRESENTATIONS AND
WARRANTIES............................................................41
SECTION 3.01
Organization and
Authority..................................................41
SECTION 3.02
Due
Execution...............................................................41
SECTION 3.03
Statements
Made.............................................................42
SECTION 3.04
Financial
Statements........................................................42
SECTION 3.05
Ownership...................................................................42
SECTION 3.06
Liens.......................................................................42
SECTION 3.07
Compliance with
Law.........................................................43
SECTION 3.08
Insurance...................................................................43
SECTION 3.09
Use of Proceeds and Letters of
Credit.......................................43
SECTION 3.10
Litigation..................................................................44
SECTION 3.11
Properties..................................................................44
SECTION 3.12
Taxes.......................................................................44
SECTION 3.13
ERISA.......................................................................44
SECTION 3.14
Labor
Matters...............................................................45
SECTION 3.14
FCC
Compliance..............................................................45
SECTION 4.
CONDITIONS................................................................................46
SECTION 4.01
Conditions Precedent to
Effectiveness.......................................46
SECTION 4.02
Conditions Precedent to Each Credit or Disbursement
Event...................49
SECTION 5.
AFFIRMATIVE
COVENANTS.....................................................................50
SECTION 5.01
Financial Statements, Reports,
etc..........................................51
SECTION 5.02
Corporate Existence;
Properties.............................................53
SECTION 5.03
Insurance...................................................................54
SECTION 5.04
Obligations and
Taxes.......................................................54
SECTION 5.05
Notice of Event of Default,
etc.............................................54
SECTION 5.06
Access to Books and
Records.................................................54
ii
<PAGE>
SECTION
5.07
Maintenance of Controlled
Accounts..........................................55
SECTION 5.08
Financial
Forecasts.........................................................55
SECTION 5.09
Maintenance of Escrow
Account...............................................55
SECTION 5.10
Interim
Order...............................................................55
SECTION 5.11
Compliance with
Laws........................................................55
SECTION 6.
NEGATIVE
COVENANTS........................................................................55
SECTION 6.01
Liens.......................................................................56
SECTION 6.02
Merger,
etc.................................................................56
SECTION 6.03
Indebtedness................................................................56
SECTION 6.04
Maximum Borrowings, Letters of Credit and Escrow
Disbursements..............56
SECTION 6.05
Cumulative Net Operating
Cashflow...........................................57
SECTION 6.06
Guarantees and Other
Liabilities............................................57
SECTION 6.07
Chapter 11
Claims...........................................................57
SECTION 6.08
Dividends; Capital
Stock....................................................57
SECTION 6.09
Transactions with
Affiliates................................................58
SECTION 6.10
Investments, Loans and
Advances.............................................58
SECTION 6.11
Disposition of
Assets.......................................................58
SECTION 6.12
Nature of
Business..........................................................58
SECTION 6.13
Accounting
Changes..........................................................58
SECTION 6.14
Non-Collateral
Accounts.....................................................58
SECTION 6.15
Sale and Leaseback
Transactions.............................................58
SECTION 7.
EVENTS OF
DEFAULT.........................................................................59
SECTION 7.01
Events of
Default...........................................................59
SECTION 8.
THE
AGENT.................................................................................63
SECTION 8.01
Administration by
Agent.....................................................63
SECTION 8.02
Advances and
Payments.......................................................63
SECTION 8.03
Sharing of
Setoffs..........................................................63
SECTION 8.04
Agreement of Required
Lenders...............................................64
SECTION 8.05
Liability of
Agent..........................................................64
SECTION 8.06
Reimbursement and
Indemnification...........................................65
iii
<PAGE>
SECTION 8.07
Rights of
Agent.............................................................65
SECTION 8.08
Independent
Lenders.........................................................65
SECTION 8.09
Notice of
Transfer..........................................................66
SECTION 8.10
Successor
Agent.............................................................66
SECTION 9.
GUARANTY..................................................................................66
SECTION 9.01
Guaranty....................................................................66
SECTION 9.02
No Impairment of
Guaranty...................................................67
SECTION 9.03
Subrogation.................................................................67
SECTION 10.
MISCELLANEOUS.............................................................................68
SECTION 10.01
Notices.....................................................................68
SECTION 10.02
Survival of Agreement, Representations and Warranties,
etc..................68
SECTION 10.03
Successors and
Assigns......................................................68
SECTION 10.04
Confidentiality.............................................................71
SECTION 10.05
Expenses....................................................................71
SECTION 10.06
Indemnity...................................................................71
SECTION 10.07
CHOICE OF LAW AND
JURISDICTION..............................................72
SECTION 10.08
No
Waiver...................................................................72
SECTION 10.09
Extension of
Maturity.......................................................72
SECTION 10.10
Amendments,
etc.............................................................73
SECTION 10.11
Severability................................................................74
SECTION 10.12
Headings....................................................................74
SECTION 10.13
Execution in
Counterparts...................................................74
SECTION 10.14
Prior
Agreements............................................................74
SECTION 10.15
Further
Assurances..........................................................74
SECTION 10.16
WAIVER OF JURY
TRIAL........................................................74
SECTION 10.17
USA Patriot
Act.............................................................75
</TABLE>
ANNEX A
Commitment Amounts
EXHIBIT A
- Form of
Interim Order
EXHIBIT B
- Form of
Security and Pledge Agreement
EXHIBIT C
- Form of
Opinion of Counsel
EXHIBIT D
Form of Assignment and Acceptance
iv
<PAGE>
EXHIBIT E
Initial Approved Cash Forecast
SCHEDULE 1.01 -
Existing
Agreements
SCHEDULE 3.05 -
Subsidiaries
SCHEDULE 3.06 -
Liens
SCHEDULE 3.10 -
Litigation
SCHEDULE 6.10 -
Existing
Investments
SCHEDULE 6.11 -
Asset Sales
v
<PAGE>
REVOLVING CREDIT AND GUARANTY AGREEMENT
Dated as of November 1, 2005
REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of November
1, 2005, among MCLEODUSA INCORPORATED, a
Delaware corporation (the "Borrower"),
a debtor and debtor-in-possession in a case
pending under Chapter 11 of the
Bankruptcy Code, and certain of the direct
or indirect subsidiaries of the
Borrower signatory hereto (each a
"Guarantor" and collectively, the
"Guarantors"), each of which Guarantors
referred to in this paragraph is a
debtor and debtor-in-possession in a case
pending under Chapter 11 of the
Bankruptcy Code (the cases of the Borrower
and the Guarantors, each a "Case"
and collectively, the "Cases"), JPMORGAN
CHASE BANK, N.A., a national banking
association ("JPMorgan Chase"), each of the
other financial institutions from
time to time party hereto (together with
JPMorgan Chase, the "Lenders") and
JPMORGAN CHASE BANK, N.A., as agent (in
such capacity, the "Agent") for the
Lenders.
INTRODUCTORY STATEMENT
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On October 28, 2005, the Borrower and the Guarantors filed
voluntary petitions with the Bankruptcy
Court initiating the Cases and have
continued in the possession of their assets
and in the management of their
business pursuant to Sections 1107 and 1108
of the Bankruptcy Code.
The Borrower, the Guarantors, the Existing 2002 Lenders, and
the Pre-Petition 2002 Agent are parties to
the Existing 2002 Agreement,
pursuant to which the Borrower and the
Guarantors were truly and justly
indebted to the Existing 2002 Lenders on
the Filing Date in the outstanding
principal amount of $100,000,000 and in
respect of the aggregate outstanding
face amount of issued but undrawn letters
of credit outstanding thereunder in
the amount of $7,400,000.
The Borrower, the Guarantors, the Existing 2000 Lenders, and
the Pre-Petition 2000 Agent are parties to
the Existing 2000 Agreement,
pursuant to which the Borrower and the
Guarantors were truly and justly
indebted to the Existing 2000 Lenders on
the Filing Date in the principal
amount of $677,277,945.57 in respect of
loans made thereunder.
The Borrower has applied to the Lenders for a revolving
credit and letter of credit facility in an
aggregate principal amount not to
exceed $50,000,000, all of the Borrower's
obligations under which are to be
guaranteed by the Guarantors.
The proceeds of the Loans will be used for working capital
and other general corporate purposes of the
Borrower and the Guarantors in
accordance with the Approved Cash
Forecast.
To
provide security for the repayment of the Loans, the
reimbursement of any draft drawn under a
Letter of Credit and the payment of
the other obligations of the Borrower and
the Guarantors hereunder and under
the other Loan Documents (including,
without limitation, the Obligations of the
Borrower under Section 6.03(vi)), the
Borrower
<PAGE>
and the Guarantors will provide to the
Agent for the benefit of the Lenders the
following (each as more fully described
herein):
(a) a joint and several allowed administrative expense claim
in each of the Cases pursuant to Section
364(c)(1) of the Bankruptcy Code
having priority over all administrative
expenses of the kind specified in
Sections 503(b) and 507(b) of the
Bankruptcy Code;
(b) a perfected first priority Lien, pursuant to Section
364(c)(2) of the Bankruptcy Code, upon all
tangible and intangible property of
the Borrower's and the Guarantors'
respective estates in the Cases that is not
subject to valid, perfected and
non-avoidable liens as of the Filing Date and
on all cash and cash equivalents in the
Letter of Credit Account;
(c) a perfected junior Lien, pursuant to Section 364(c)(3) of
the Bankruptcy Code, upon all tangible and
intangible property of the
Borrower's and the Guarantors' respective
estates in the Cases (other than the
property referred to in paragraph (e) below
that is subject to the valid and
perfected Liens that presently secure the
Borrower's and Guarantors'
pre-petition Indebtedness under the
Existing Agreements) that is subject to
valid, perfected and non-avoidable Liens in
existence on the Filing Date or
that is subject to valid Liens in existence
on the Filing Date that are
perfected subsequent to the Filing Date as
permitted by Section 546(b) of the
Bankruptcy Code or that is subject to
Permitted Liens, junior to such valid,
perfected and non-avoidable Liens; and
(d) perfected first priority senior priming Liens, pursuant
to Section 364(d)(1) of the Bankruptcy
Code, upon all property of the
Borrower's and the Guarantors' respective
estates in the Cases that is subject
to (x) the existing Liens that presently
secure the Borrower's and Guarantors'
pre-petition Indebtedness under or in
connection with the Existing Agreements
(but subject to any Liens to which the
Liens being primed hereby are subject on
the Filing Date or become subject
subsequent to the Filing Date as permitted by
Section 546(b) of the Bankruptcy Code) and
(y) any Liens granted after the
Filing Date to provide adequate protection
in respect of the Existing
Agreements, which first priority priming
Liens shall be senior in all respects
to all of such existing Liens under or in
connection with the Existing
Agreements, and to any Liens granted after
the Filing Date to provide adequate
protection in respect thereof.
All of the claims and the Liens granted hereunder in the
Cases to the Agent and the Lenders shall be
subject to the Carve-Out to the
extent provided in Section 2.23.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.
DEFINITIONS
SECTION 1.01
Defined Terms.
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"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Alternate
Base Rate in accordance with the
provisions of Section 2.
"Additional Credit" shall have the meaning set forth in
Section 4.02(d) hereof.
"Adjusted LIBOR Rate" shall mean, with respect to any
Eurodollar Borrowing for any Interest
Period, an interest rate per annum
(rounded upwards, if necessary, to the next
1/100 of 1%) equal to the quotient
of (a) the LIBOR Rate in effect for such
Interest Period divided by (b) a
percentage (expressed as a decimal) equal
to 100% minus Statutory Reserves. For
purposes hereof, the term "LIBOR Rate"
shall mean the rate at which dollar
deposits approximately equal in principal
amount to such Eurodollar Borrowing
and for a maturity comparable to such
Interest Period are offered to the
principal London office of the Agent in
immediately available funds in the
London interbank market at approximately
11:00 a.m., London time, two Business
Days prior to the commencement of such
Interest Period.
"Affiliate" shall mean, as to any Person, any other Person
which, directly or indirectly, is in
control of, is controlled by, or is under
common control with, such Person. For
purposes of this definition, a Person (a
"Controlled Person") shall be deemed to be
"controlled by" another Person (a
"Controlling Person") if the Controlling
Person possesses, directly or
indirectly, power to direct or cause the
direction of the management and
policies of the Controlled Person whether
by contract or otherwise.
"Agent" shall have the meaning set forth in the first
paragraph of this Agreement.
"Agreement" shall mean this Revolving Credit and Guaranty
Agreement, as the same may from time to
time be further amended, modified or
supplemented.
"Alternate Base Rate" shall mean, for any day, a rate per
annum equal to the greater of (a) the Prime
Rate in effect on such day and (b)
the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. For
purposes hereof, "Prime Rate" shall mean
the rate of interest per annum
publicly announced from time to time by the
Agent as its prime rate in effect
at its principal office in New York City;
each change in the Prime Rate shall
be effective on the date such change is
publicly announced. "Federal Funds
Effective Rate" shall mean, for any day,
the weighted average of the rates on
overnight Federal funds transactions with
members of the Federal Reserve System
arranged by Federal funds brokers, as
published on the next succeeding Business
Day by the Federal Reserve Bank of New
York, or, if such rate is not so
published for any day which is a Business
Day, the average of the quotations
for the day of such transactions received
by the Agent from three Federal funds
brokers of recognized standing selected by
it. If for any reason the Agent
shall have determined (which determination
shall be conclusive absent manifest
error) that it is unable to ascertain the
Federal Funds Effective Rate for any
reason, including the inability or failure
of the Agent to obtain sufficient
quotations in accordance with the terms
hereof, the Alternate Base Rate shall
be determined without regard to clause (b)
of the first sentence of this
definition until the circumstances giving
rise to such inability no longer
exist. Any change in the Alternate Base
Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall
be effective on the effective date of
such change in the Prime Rate or the
Federal Funds Effective Rate,
respectively.
"Approved Cash Forecast" shall have the meaning set forth in
Section 5.01(l) hereof.
"Asset Disposition" shall mean any sale, transfer or other
disposition (including pursuant to a sale
and leaseback transaction) of any
property or asset of the Borrower or any of
its Subsidiaries, other than
dispositions described in clauses (i) and
(ii) of Section 6.11.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an
Eligible Assignee, and accepted by
the Agent, substantially in the form of
Exhibit D.
"Attributable Debt" shall mean, on any date, in respect of
any lease of the Borrower or any Subsidiary
entered into as part of a sale and
leaseback transaction subject to Section
6.15, (i) if such lease is a
Capitalized Lease, the capitalized amount
thereof that would appear on a
balance sheet of such Person prepared as of
such date in accordance with GAAP,
and (ii) if such lease is not a Capitalized
Lease, the capitalized amount of
the remaining lease payments under such
lease that would appear on a balance
sheet of such Person prepared as of such
date in accordance with GAAP if such
lease were accounted for as a Capitalized
Lease.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of
1978, as heretofore and hereafter amended,
and codified as 11 U.S.C. Section
101 et seq.
"Bankruptcy Court" shall mean the United States Bankruptcy
Court for the Northern District of Illinois
or any other court having
jurisdiction over the Cases from time to
time.
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrower" shall have the meaning set forth in the first
paragraph of this Agreement.
"Borrowing" shall mean the incurrence of Loans of a single
Type made from all the Lenders on a single
date and having, in the case of
Eurodollar Loans, a single Interest Period
(with any ABR Loan made pursuant to
Section 2.16 being considered a part of the
related Borrowing of Eurodollar
Loans).
"Business Day" shall mean any day other than a Saturday,
Sunday or other day on which Lenders in the
State of New York are required or
permitted to close (and, for a Letter of
Credit, other than a day on which the
Fronting Lender issuing such Letter of
Credit is closed); provided, however,
that when used in connection with a
Eurodollar Loan, the term "Business Day"
shall also exclude any day on which Lenders
are not open for dealings in dollar
deposits on the London interbank
market.
"Capitalized Lease" shall mean, as applied to any Person, any
lease of property by such Person as lessee
which would be capitalized on a
balance sheet of such Person prepared in
accordance with GAAP.
"Carve-Out" shall mean (a) all fees required to be paid to
the Clerk of the Bankruptcy Court and to
the Office of the United States
Trustee pursuant to 28 U.S.C. ss. 1930(a)
and (b) after the occurrence and
during the continuance of an Event of
Default an amount not exceeding
$1,000,000 in the aggregate, which amount
may be used subject to the terms of
the Orders, to pay any fees or expenses
incurred by the Loan Parties and any
statutory committees appointed in the Cases
(each, a "Committee") in respect of
(i) allowances of compensation for services
rendered or reimbursement of
expenses awarded by the Bankruptcy Court to
any Loan Party's or any Committee's
professionals (including, without
limitation, employees of Alvarez & Marsal,
LLC who are officers of the Borrower) and
(ii) the reimbursement of expenses
allowed by the Bankruptcy Court incurred by
Committee members in the
performance of their duties (but excluding
fees and expenses of third party
professionals employed by such members);
provided that (x) the dollar
limitation in clause (b) of this definition
on fees and disbursements shall
neither be reduced nor increased by the
amount of any compensation or
reimbursement of expenses incurred, awarded
or paid prior to the occurrence of
an Event of Default in respect of which the
Carve-Out is invoked or by any
fees, expenses, indemnities or other
amounts paid to any Agent, Lender or their
respective attorneys and agents under this
Agreement or otherwise, (y) nothing
herein shall be construed to impair the
ability of any party to object to any
of the fees, expenses, reimbursement or
compensation described in clauses (i)
and (ii) above, and (z) cash or other
amounts on deposit in the Letter of
Credit Account shall not be subject to the
Carve-Out.
"Cases" shall have the meaning set forth in the first
paragraph of this Agreement.
"Cash Balance" shall mean the aggregate amount of all cash
and cash equivalents (including all
Permitted Investments) held in all of the
operating and other bank accounts of the
Borrower and the Guarantors maintained
at any institution (including any amounts
held in the Escrow Account and all
other accounts with the Agent but excluding
the Letter of Credit Account) less
(i) any amounts required to be maintained
in a bank account to satisfy
obligations in respect of issued checks and
(ii) any amounts that have been
pre-funded to satisfy accrued payroll
obligations of the Borrower and the
Guarantors in accordance with past
practices and the procedures established by
the payroll processor, provided that (x)
the aggregate of such pre-funded
amounts may not at any time exceed
$8,000,000 and (y) such amounts (other than
a de minimus amount not to exceed $50,000)
must be disbursed within the next
payroll cycle.
"Cash Collateralization" shall have the meaning set forth in
Section 2.03(b).
"Cash Forecast" shall mean the Initial Approved Cash Forecast
and each other cash forecast, substantially
in the form of Exhibit E,
detailing, on a weekly basis for each of
the 13 successive weeks included
therein, (i) the anticipated cash receipts
and disbursements of the Borrower
and the Guarantors on a consolidated basis
during such week, (ii) the
anticipated maximum amounts of Borrowings
and Letters of Credit during such
week (together with any unused amounts
carried over from prior weeks included
in such cash forecast, the "Projected DIP
Usage") and (iii) the anticipated
maximum disbursements of amounts from the
Escrow Account during such week
(together with any unused amounts carried
over from prior weeks included in
such cash forecast, the "Projected Escrow
Usage").
"Cash Forecast Approval Date" shall mean (i) for the Initial
Approved Cash Forecast, the Filing Date and
(ii) for any other Cash Forecast,
the date, if any, on which such Cash
Forecast is approved or deemed approved by
the Required Lenders pursuant to Section
5.01(l).
"Cash Forecast Delivery Date" shall mean the fourth Tuesday
following the most recent Cash Forecast
Approval Date.
"Change of Control" shall mean (i) the acquisition of
ownership, directly or indirectly,
beneficially or of record, by any Person or
group (within the meaning of the Securities
Exchange Act of 1934 and the rules
of the Securities and Exchange Commission
thereunder as in effect on the date
hereof), of shares representing more than
35% of the aggregate ordinary voting
power represented by the issued and
outstanding capital stock of the Borrower;
or (ii) the occupation of a majority of the
seats (other than vacant seats) on
the Board of Directors of the Borrower by
Persons who were neither (A)
nominated by the Board of Directors of the
Borrower nor (B) appointed by
directors so nominated.
"Closing Date" shall mean the date on which this Agreement
has been executed and the conditions
precedent to the effectiveness of this
Agreement set forth in Section 4.01 have
been satisfied or waived, which date
shall occur promptly upon entry of the
Interim Order, but not later than 10
days following the entry of the Interim
Order.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean (i) the "Collateral" as defined in
the Security and Pledge Agreement and (ii)
any other collateral granted as
security for the Obligations pursuant to
any other Loan Document.
"Commitment" shall mean, with respect to each Lender, the
commitment of each Lender hereunder in the
amount set forth opposite its name
on Annex A hereto or as may subsequently be
set forth in the Register from time
to time, as the same may be reduced from
time to time pursuant to this
Agreement.
"Commitment Fee" shall have the meaning set forth in Section
2.20.
"Commitment Percentage" shall mean at any time, with respect
to each Lender, the percentage obtained by
dividing its Commitment at such time
by the Total Commitment at such time.
"Communications Act" shall mean the Communications Act of
1934 and any similar or successor Federal
statute and the rules, regulations
and published policies of the Federal
Communications Commission thereunder, all
as amended and as the same may be in effect
from time to time.
"Consummation Date" shall mean the date of the substantial
consummation (as defined in Section 1101 of
the Bankruptcy Code and which for
purposes of this Agreement shall be no
later than the effective date) of a
Reorganization Plan that is confirmed
pursuant to an order of the Bankruptcy
Court.
"Core Asset Sale Proceeds" shall mean Net Proceeds of any
Asset Disposition, other than (a) Net
Proceeds from the sale of airplanes and
(b) (i) the first $10,000,000 of Net
Proceeds received in any calendar year
(other than 2005) from the sale of
indefeasible rights of use or other sale or
lease transactions involving dark fiber or
conduit (collectively, "Fiber
Transactions") and (ii) in the case of
2005, the first $5,000,000 of Net
Proceeds received from Fiber Transactions
during the period from the Filing
Date to December 31, 2005. All Net Proceeds
received from Fiber Transactions in
any calendar year in excess of the amount
specified for such year in the
preceding sentence shall be considered Core
Asset Sale Proceeds, regardless of
whether such transactions qualify for sales
type accounting treatment under
GAAP.
"Credit or Disbursement Event" shall mean the occasion of any
Borrowing, or the issuance, amendment,
renewal or extension of any Letter of
Credit, or any Escrow Disbursement.
"Cumulative Net Operating Cashflow" shall mean, with respect
to any specified week, an amount equal to
(a) cash receipts from Trade AR minus
(b) cash disbursements for Cost of Service,
SG&A, Capex, Payroll/Taxes and
Interest (as each term is used in the Cash
Forecasts), in each case for the
Borrower and the Guarantors on a
consolidated basis for the period starting
with Monday of the Initial Week and ending
on the last day of such specified
week.
"Dollars" and "$" shall mean lawful money of the United
States of America.
"Eligible Assignee" shall mean (i) a commercial Lender having
total assets in excess of $1,000,000,000;
(ii) a finance company, insurance
company or other financial institution or
fund, in each case reasonably
acceptable to the Agent, which in the
ordinary course of business extends
credit of the type contemplated herein and
has total assets in excess of
$200,000,000 and whose becoming an assignee
would not constitute a prohibited
transaction under Section 4975 of ERISA;
(iii) a Lender Affiliate of the
assignor Lender; and (iv) any other
financial institution satisfactory to the
Agent.
"Environmental Lien" shall mean a Lien in favor of any
Governmental Authority for (i) any
liability under federal or state
environmental laws or regulations, or (ii)
damages arising from or costs
incurred by such Governmental Authority in
response to a release or threatened
release of a hazardous or toxic waste,
substance or constituent, or other
substance into the environment.
"Equity Interests" shall mean shares of capital stock,
partnership interests, membership interests
in a limited liability company,
beneficial interests in a trust or other
equity ownership interests in a
Person.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time,
and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" shall mean each person (as defined in
Section 3(9) of ERISA) which together with
the Borrower or a Subsidiary of the
Borrower would be deemed to be a single
employer within the meaning of Section
414(b), (c), (m), or (o) of the Code.
"Escrow Account" shall mean the account established by the
Borrower under the sole and exclusive
control of the Agent maintained at the
office of the Agent, 270 Park Avenue, New
York, New York 10017 designated as
the "McLeodUSA Escrow Account" that shall
be used solely for the purposes set
forth herein.
"Escrow Disbursements" shall have the meaning set forth in
Section 6.04(a).
"Escrow Payout Date" shall mean the first date on which each
of the following shall have occurred: (i)
the Commitments shall have been
wholly and permanently terminated, (ii) all
Loans shall have been paid in full
(plus any accrued and unpaid interest
thereon, including without limitation any
interest payable pursuant to Section 2.09),
(iii) all payments made by the
Fronting Lender pursuant to any Letter of
Credit shall have been reimbursed
(plus any accrued and unpaid interest
thereon, including without limitation any
interest payable pursuant to Section
2.03(d)), (iv) the accrued and unpaid
Commitment Fees and accrued and unpaid
Letter of Credit Fees shall have been
paid in full and (v) no Letters of Credit
shall be outstanding (or, if any are
outstanding, they shall have been backed by
Cash Collateralization in an
aggregate amount equal to 105% of the then
Letter of Credit Outstandings).
"Eurocurrency Liabilities" shall have the meaning assigned
thereto in Regulation D issued by the
Board, as in effect from time to time.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a
rate determined by reference to the
Adjusted LIBOR Rate in accordance with the
provisions of Section 2.
"Event of Default" shall have the meaning set forth in
Section 7.
"Excluded Taxes" shall mean, with respect to the Agent, any
Lender, the Fronting Lender or any other
recipient of any payment to be made by
or on account of any obligation of the
Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by)
its net income by the United States
of America, or by the jurisdiction under
the laws of which such recipient is
organized or in which its principal office
is located or, in the case of any
Lender, in which its applicable lending
office is located, (b) any branch
profits taxes imposed by the United States
of America or any similar tax
imposed by any other jurisdiction in which
the Borrower is located and (c) in
the case of a Foreign Lender, any
withholding tax that is imposed on amounts
payable to such Foreign Lender at the time
such Foreign Lender becomes a party
to this Agreement (or designates a new
lending office) or is attributable to
such Foreign Lender's failure to comply
with Section 2.18(e), except to the
extent that such Foreign Lender (or its
assignor, if any) was entitled, at the
time of designation of a new lending office
(or assignment), to receive
additional amounts from the Borrower with
respect to such withholding tax
pursuant to Section 2.18(a).
"Existing Agreements" shall mean, collectively, the Existing
2000 Agreement and the Existing 2002
Agreement.
"Existing Lenders" shall mean, collectively, the Existing
2000 Lenders and the Existing 2002
Lenders.
"Existing 2000 Agreement" shall mean that certain Credit
Agreement dated as of May 31, 2000, and all
of the agreements providing for
guaranties thereof by the Guarantors and
all of the Existing Security
Documents, as each may have been amended or
modified from time to time.
"Existing 2000 Lenders" shall mean, collectively, the lenders
under the Existing 2000 Agreement, together
with any successors or assigns
thereof.
"Existing 2002 Agreement" shall mean that certain Credit
Agreement dated as of April 16, 2002, and
all of the agreements providing for
guaranties thereof by the Guarantors and
all of the Existing Security
Documents, as each may have been amended or
modified from time to time.
"Existing 2002 Lenders" shall mean, collectively, the lenders
under the Existing 2002 Agreement, together
with any successors or assigns
thereof.
"Existing Security Documents" shall mean all of the documents
granting security interests and Liens in
property and assets of the Borrower
and the Guarantors to the Pre-Petition
Collateral Agent, including without
limitation, the security agreements,
mortgages and leasehold mortgages listed
on Schedule 1.01 hereto.
"Extended Pre-Petition Letters of Credit" shall mean any
letter of credit issued pursuant to an
Existing Agreement prior to the Filing
Date the expiration date of which letter of
credit has been extended to a date
no later than November 1, 2006 pursuant to
the Interim Order or the Final
Order, as the case may be.
"FCC" shall mean the United States Federal Communications
Commission.
"Fees" shall collectively mean the Commitment Fees, Letter of
Credit Fees and other fees referred to in
Sections 2.19, 2.20 and 2.21.
"Filing Date" shall mean October 28, 2005.
"Final Order" shall have the meaning set forth in Section
4.02(d).
"Financial Forecast" shall mean the financial forecasts of
the Borrower set forth in the disclosure
statement relating to the Cases.
"Financial Officer" shall mean the Chief Financial Officer,
Chief Restructuring Officer, Principal
Accounting Officer, Controller or
Treasurer of the Borrower.
"Foreign Lender" shall mean any Lender that is organized
under the laws of a jurisdiction other than
that in which the Borrower is
located. For purposes of this definition,
the United States of America, each
State thereof and the District of Columbia
shall be deemed to constitute a
single jurisdiction.
"Fronting Lender" shall mean JPMorgan Chase (or any of its
banking affiliates) or such other Lender
(which other Lender shall be
reasonably satisfactory to the Borrower) as
may agree with JPMorgan Chase to
act in such capacity.
"GAAP" shall mean generally accepted accounting principles
applied in accordance with Section
1.02.
"Governmental Authority" shall mean any Federal, state,
municipal or other governmental department,
commission, board, bureau, agency
or instrumentality or any court, in each
case whether of the United States or
foreign.
"Guarantor" shall have the meaning set forth in the first
paragraph of this Agreement.
"Indebtedness" shall mean, at any time and with respect to
any Person, (i) all indebtedness of such
Person for borrowed money; (ii) all
indebtedness of such Person for the
deferred purchase price of property or
services (other than property, including
inventory, and services purchased, and
expense accruals and deferred compensation
items arising, in the ordinary
course of business); (iii) all obligations
of such Person evidenced by notes,
bonds, debentures or other similar
instruments (other than performance, surety
and appeal bonds arising in the ordinary
course of business); (iv) all
indebtedness of such Person created or
arising under any conditional sale or
other title retention agreement with
respect to property acquired by such
Person (even though the rights and remedies
of the seller or lender under such
agreement in the event of default are
limited to repossession or sale of such
property); (v) all obligations of such
Person under Capitalized Leases; (vi)
all reimbursement, payment or similar
obligations of such Person, contingent or
otherwise, under acceptance, letter of
credit or similar facilities and all
obligations of such Person in respect of
(x) currency swap agreements, currency
future or option contracts and other
similar agreements designed to hedge
against fluctuations in foreign interest
rates and (y) interest rate swap, cap
or collar agreements and interest rate
future or option contracts; (vii) all
Indebtedness referred to in clauses (i)
through (vi) above guaranteed directly
or indirectly by such Person, or in effect
guaranteed directly or indirectly by
such Person through an agreement (A) to pay
or purchase such Indebtedness or to
advance or supply funds for the payment or
purchase of such Indebtedness, (B)
to purchase, sell or lease (as lessee or
lessor) property, or to purchase or
sell services, primarily for the purpose of
enabling the debtor to make payment
of such Indebtedness or to assure the
holder of such Indebtedness against loss
in respect of such Indebtedness, (C) to
supply funds to or in any other manner
invest in the debtor (including any
agreement to pay for property or services
irrespective of whether such property is
received or such services are
rendered) or (D) otherwise to assure a
creditor against loss in respect of such
Indebtedness; and (viii) all Indebtedness
referred to in clauses (i) through
(vii) above secured by (or for which the
holder of such Indebtedness has an
existing right, contingent or otherwise, to
be secured by) any Lien upon or in
property (including, without limitation,
accounts and contract rights) owned by
such Person, even though such Person has
not assumed or become liable for the
payment of such Indebtedness.
"Indemnified Taxes" shall mean Taxes other than Excluded
Taxes.
"Initial Approved Cash Forecast" shall mean the Cash Forecast
for the 13-week period commencing on Monday
of the Initial Week attached as
Exhibit C.
"Initial Week" shall mean the week that includes the Filing
Date.
"Insufficiency" shall mean, with respect to any Plan, its
"amount of unfunded benefit liabilities"
within the meaning of Section
4001(a)(18) of ERISA, if any.
"Interest Payment Date" shall mean (i) as to any Eurodollar
Loan, the last day of each consecutive
30-day period running from the
commencement of the applicable Interest
Period applicable to the Borrowing of
which such Loan is a part, and (ii) as to
all ABR Loans, the last calendar day
of each month and the date on which any ABR
Loans are refinanced with
Eurodollar Loans pursuant to Section
2.12.
"Interest Period" shall mean, as to any Borrowing of
Eurodollar Loans, the period commencing on
the date of such Borrowing
(including as a result of a refinancing of
ABR Loans) or on the last day of the
preceding Interest Period applicable to
such Borrowing and ending on the
numerically corresponding day (or if there
is no corresponding day, the last
day) in the calendar month that is one,
two, or three months thereafter, as the
Borrower may elect in the related notice
delivered pursuant to Sections 2.06(b)
or 2.12; provided, however, that (i) if any
Interest Period would end on a day
which shall not be a Business Day, such
Interest Period shall be extended to
the next succeeding Business Day unless
such next succeeding Business Day would
fall in the next calendar month, in which
case such Interest Period shall end
on the next preceding Business Day, and
(ii) no Interest Period shall end later
than the Termination Date.
"Interim Order" shall have the meaning set forth in Section
4.01(b).
"Investments" shall have the meaning set forth in Section
6.10.
"JPMorgan Chase" shall have the meaning set forth in the
first paragraph of this Agreement.
"JPMSI" shall mean J.P. Morgan Securities Inc.
"Lender Affiliate" shall mean, (a) with respect to any
Lender, (i) an Affiliate of such Lender or
(ii) any entity (whether a
corporation, partnership, trust or
otherwise) that is engaged in making,
purchasing, holding or otherwise investing
in Lender loans and similar
extensions of credit in the ordinary course
of its business and is administered
or managed by a Lender or an Affiliate of
such Lender and (b) with respect to
any Lender that is a fund which invests in
Lender loans and similar extensions
of credit, any other fund that invests in
Lender loans and similar extensions
of credit and is managed by the same
investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Lenders" shall have the meaning set forth in the first
paragraph of this Agreement.
"Letter of Credit" shall mean any irrevocable letter of
credit issued pursuant to Section 2.03,
which letter of credit shall be (i) a
standby letter of credit, (ii) issued for
purposes that are consistent with the
ordinary course of business of the Borrower
or any Guarantor, or for such other
purposes as are reasonably acceptable to
the Agent, (iii) denominated in
Dollars and (iv) otherwise in such form as
may be reasonably approved from time
to time by the Agent and the applicable
Fronting Lender.
"Letter of Credit Account" shall mean the account established
by the Borrower under the sole and
exclusive control of the Agent maintained at
the office of the Agent at 270 Park Avenue,
New York, New York 10017 designated
as the "McLeodUSA Letter of Credit Account"
that shall be used solely for the
purposes set forth in Sections 2.03(a),
2.03(b) and 2.13.
"Letter of Credit Fees" shall mean the fees payable in
respect of Letters of Credit pursuant to
Section 2.21.
"Letter of Credit Outstandings" shall mean, at any time, the
sum of (i) the aggregate undrawn stated
amount of all Letters of Credit then
outstanding plus (ii) all amounts
theretofore drawn under Letters of Credit and
not then reimbursed.
"License" shall mean any license granted by the FCC or any
foreign telecommunications regulatory
body.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind
whatsoever (including any conditional
sale or other title retention agreement or
any lease in the nature thereof).
"Loan" shall have the meaning set forth in Section 2.01.
"Loan Documents" shall mean this Agreement, the Letters of
Credit, the Security and Pledge Agreement,
and any other instrument or
agreement executed and delivered to the
Agent or any Lender in connection
herewith (including, without limitation,
applications for Letters of Credit and
related reimbursement agreements), in each
case, as the same may be amended,
modified, supplemented, extended or
restated from time to time.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Maturity Date" shall mean May 1, 2006.
"Multiemployer Plan" shall mean a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA,
which is maintained or contributed to
by (or to which there is an obligation to
contribute of) the Borrower or a
Subsidiary of the Borrower or an ERISA
Affiliate, and each such plan for the
five-year period immediately following the
latest date on which the Borrower,
or a Subsidiary of the Borrower or an ERISA
Affiliate maintained, contributed
to or had an obligation to contribute to
such plan.
"Multiple Employer Plan" shall mean a Single Employer Plan,
which (i) is maintained for employees of
the Borrower or an ERISA Affiliate and
at least one person (as defined in Section
3(9) of ERISA) other than the
Borrower and its ERISA Affiliates or (ii)
was so maintained and in respect of
which the Borrower or an ERISA Affiliate
could have liability under Section
4064 or 4069 of ERISA in the event such
Plan has been or were to be terminated.
"Net Proceeds" shall mean, in respect of any event, the cash
proceeds received in respect of such event
after the payment of or reservation
for (i) expenses that are directly related
to (or the need for which arises as
a result of) such event, including, but not
limited to, related severance
costs, taxes payable, brokerage
commissions, professional expenses, other
similar costs that are directly related to
such event (all of which expenses
shall be satisfactory to the Agent in its
reasonable judgment), and (ii) in the
case of any sale of assets, the amount
secured by valid and perfected Liens, if
any, that are senior to the Liens on such
assets held by the Agent on behalf of
the Lenders.
"Obligations" shall mean (a) the due and punctual payment of
principal of and interest on the Loans and
the reimbursement of all amounts
drawn under Letters of Credit, and (b) the
due and punctual payment of the Fees
and all other present and future, fixed or
contingent, monetary obligations of
the Borrower and the Guarantors to the
Lenders and the Agent under the Loan
Documents.
"Orders" shall mean the Interim Order and the Final Order of
the Bankruptcy Court referred to in
Sections 4.01(b) and 4.02(d).
"Other Taxes" shall mean any and all present or future stamp
or documentary taxes or any other excise or
property taxes, charges or similar
levies arising from any payment made
hereunder or from the execution, delivery
or enforcement of, or otherwise with
respect to, this Agreement.
"Patriot Act" shall mean the USA Patriot Act, Title III of
Pub. L. 107-56, signed into law on October
26, 2001.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
or any successor agency or entity
performing substantially the same functions.
"Pension Plan" shall mean a defined benefit plan (as defined
in Section 414(j) of the Code and Section
3(35) of ERISA) which meets and is
subject to the requirements of Section
401(a) of the Code.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally
guaranteed by, the United States of
America (or by any agency thereof to the
extent such obligations are backed by
the full faith and credit of the United
States of America), in each case
maturing within twelve months from the date
of acquisition thereof;
(b) without limiting the provisions of paragraph (d) below,
investments in commercial paper maturing
within six months from the date of
acquisition thereof and having, at such
date of acquisition, a rating of at
least "A-2" or the equivalent thereof from
Standard & Poor's, a division of The
McGraw-Hill Companies, Inc. or of at least
"P-2" or the equivalent thereof from
Moody's Investors Service, Inc.;
(c) investments in demand deposits or certificates of
deposit, banker's acceptances and time
deposits (including Eurodollar time
deposits) maturing within six months from
the date of acquisition thereof
issued or guaranteed by or placed with (i)
any domestic office of the Agent or
the bank with whom the Borrower and the
Guarantors maintain their cash
management system, provided, that if such
bank is not a Lender hereunder, such
bank shall have entered into an agreement
with the Agent pursuant to which such
bank shall have waived all rights of setoff
and confirmed that such bank does
not have, nor shall it claim, a security
interest therein or (ii) any domestic
office of any other commercial bank of
recognized standing organized under the
laws of the United States of America or any
State thereof that has a combined
capital and surplus and undivided profits
of not less than $250,000,000 and is
the principal banking subsidiary of a bank
holding company having a long-term
unsecured debt rating of at least "A" or
the equivalent thereof from Standard &
Poor's, a division of The McGraw-Hill
Companies, Inc. or at least "A2" or the
equivalent thereof from Moody's Investors
Service, Inc.;
(d) investments in commercial paper maturing within six
months from the date of acquisition thereof
and issued by (i) the holding
company of the Agent or (ii) the holding
company of any other commercial bank
of recognized standing organized under the
laws of the United States of America
or any State thereof that has (A) a
combined capital and surplus in excess of
$250,000,000 and (B) commercial paper rated
at least "A-2" or the equivalent
thereof from Standard & Poor's, a
division of The McGraw-Hill Companies, Inc.
or of at least "P-2" or the equivalent
thereof from Moody's Investors Service,
Inc.;
(e) investments in repurchase obligations with a term of not
more than seven days for underlying
securities of the types described in clause
(a) above entered into with any office of a
bank or trust company meeting the
qualifications specified in clause (c)
above;
(f) direct obligations issued by any state of the United
States of America or any political
subdivision of any such state or any public
instrumentality thereof maturing, or
subject to tender at the option of the
holder thereof, within 270 days after the
date of acquisition thereof, provided
that, at the time of acquisition, the
long-term debt of such state, political
subdivision or public instrumentality has a
rating of A (or higher) from S&P or
A2 (or higher) from Moody's (or, if at any
time neither S&P nor Moody's shall
be rating such obligations, then an
equivalent rating from such other
nationally recognized rating service
acceptable to the Administrative Agent);
and
(g) investments in money market funds substantially all the
assets of which are comprised of securities
of the types described in clauses
(a) through (f) above.
"Permitted Liens" shall mean (i) Liens imposed by law (other
than Environmental Liens and any Lien
imposed under ERISA) for taxes,
assessments or charges of any Governmental
Authority for claims not yet due or
which are being contested in good faith by
appropriate proceedings and with
respect to which adequate reserves or other
appropriate provisions are being
maintained in accordance with GAAP; (ii)
Liens of landlords and Liens of
carriers, warehousemen, consignors,
mechanics, materialmen and other Liens
(other than Environmental Liens and any
Lien imposed under ERISA) in existence
on the Filing Date or thereafter imposed by
law and created in the ordinary
course of business; (iii) Liens (other than
any Lien imposed under ERISA)
incurred or deposits made in the ordinary
course of business (including,
without limitation, surety bonds and appeal
bonds) in connection with workers'
compensation, unemployment insurance and
other types of social security
benefits or to secure the performance of
tenders, bids, leases, contracts
(other than for the repayment of
Indebtedness), statutory obligations and other
similar obligations or arising as a result
of progress payments under
government contracts; (iv) easements
(including, without limitation, reciprocal
easement agreements and utility
agreements), rights-of-way, covenants,
consents, reservations, encroachments,
variations and zoning and other
restrictions, charges or encumbrances
(whether or not recorded) and interest of
ground lessors, which do not interfere
materially with the ordinary conduct of
the business of the Borrower or any
Guarantor, as the case may be, and which do
not materially detract from the value of
the property to which they attach or
materially impair the use thereof to the
Borrower or any Guarantor, as the case
may be; (v) purchase money Liens (including
Capitalized Leases) upon or in any
property acquired or held in the ordinary
course of business to secure the
purchase price of such property or to
secure Indebtedness permitted by Section
6.03(iv) solely for the purpose of
financing the acquisition of such property;
(vi) letters of credit or deposits in the
ordinary course to secure leases; and
(vii) extensions, renewals or replacements
of any Lien referred to in
paragraphs (i) through (vi) above, provided
that the principal amount of the
obligation secured thereby is not increased
and that any such extension,
renewal or replacement is limited to the
property originally encumbered
thereby.
"Person" shall mean any natural person, corporation, division
of a corporation, limited liability
company, partnership, trust, joint venture,
association, company, estate,
unincorporated organization or government or any
agency or political subdivision
thereof.
"Plan" shall mean a Single Employer Plan or a Multiemployer
Plan.
"Prepayment Date" shall mean 45 days after the entry of the
Interim Order by the Bankruptcy Court if
the Final Order has not been entered
by the Bankruptcy Court prior to the
expiration of such 45-day period, or if
the Final Order as entered by the
Bankruptcy Court does not authorize credit
extensions under this Agreement of up to
$50,000,000.
"Pre-Petition 2000 Agent" shall mean JPMorgan Chase as
administrative agent under the Existing
2000 Agreement.
"Pre-Petition 2002 Agent" shall mean JPMorgan Chase as
administrative agent under the Existing
2002 Agreement.
"Pre-Petition Agents" shall mean, collectively, the
Pre-Petition 2000 Agent, the Pre-Petition
2002 Agent, and the Pre-Petition
Collateral Agent.
"Pre-Petition Collateral Agent" shall mean JPMorgan Chase as
collateral agent under the Existing
Security Documents.
"Pre-Petition Payment" shall mean a payment (by way of
adequate protection or otherwise) of
principal or interest or otherwise on
account of any pre-petition Indebtedness or
trade payables (including, without
limitation, in respect of reclamation
claims) or other pre-petition claims
against the Borrower or any Guarantor.
"Projected DIP Usage" shall have the meaning set forth in the
definition of "Cash Forecast".
"Projected Escrow Usage" shall have the meaning set forth in
the definition of "Cash Forecast".
"Reduction Event" shall mean (i) any Asset Disposition; (ii)
the return of any utility deposit by any
vendor of the Borrower or any of its
Subsidiaries; (iii) any casualty or other
insured damage to, or any taking
under power of eminent domain or by
condemnation or similar proceeding of, any
property or asset of the Borrower or any of
its Subsidiaries; (iv) the issuance
by the Borrower or any of its Subsidiaries
of any Equity Interest, or the
receipt by the Borrower or any of its
Subsidiaries of any capital contribution,
other than any such issuance by a Loan
Party of an Equity Interest to, or
receipt by a Loan Party of any such capital
contribution from, any other Loan
Party; or (v) the incurrence by the
Borrower or any of its Subsidiaries of any
Indebtedness, other than Indebtedness
permitted under Section 6.03 (each of
clauses (iii), (iv) and (v), a "Specified
Reduction Event").
"Register" shall have the meaning set forth in Section
10.03(d).
"Reorganization Plan" shall mean a plan of reorganization in
any of the Cases.
"Required Lenders" shall mean, at any time, Lenders holding
Loans representing in excess of 50% of the
aggregate principal amount of such
Loans outstanding or, if no Loans are
outstanding, Lenders having Commitments
representing in excess of 50% of the Total
Commitment.
"Security and Pledge Agreement" shall have the meaning set
forth in Section 4.01(c).
"Single Employer Plan" shall mean a single employer plan, as
defined in Section 4001(a)(15) of ERISA,
that (i) is maintained for employees
of the Borrower or an ERISA Affiliate or
(ii) was so maintained and in respect
of which the Borrower could have liability
under Title IV of ERISA in the event
such Plan has been or were to be
terminated.
"Specified Reduction Event" shall have the meaning set forth
in the definition of "Reduction Event".
"Statutory Reserves" shall mean on any date the percentage
(expressed as a decimal) established by the
Board and any other banking
authority which is for purposes of the
definition of Adjusted LIBOR Rate, the
then stated maximum rate for all reserves
(including but not limited to any
emergency, supplemental or other marginal
reserve requirements) applicable to
any member Lender of the Federal Reserve
System in respect of Eurocurrency
Liabilities (or any successor category of
liabilities under Regulation D issued
by the Board, as in effect from time to
time). Such reserve percentages shall
include, without limitation, those imposed
pursuant to said Regulation. The
Statutory Reserves shall be adjusted
automatically on and as of the effective
date of any change in such percentage.
"Subsidiary" shall mean, with respect to any Person (herein
referred to as the "parent"), any
corporation, association or other business
entity (whether now existing or hereafter
organized) of which at least a
majority of the securities or other
ownership interests having ordinary voting
power for the election of directors is, at
the time as of which any
determination is being made, owned or
controlled by the parent or one or more
subsidiaries of the parent or by the parent
and one or more subsidiaries of the
parent.
"Super-majority Lenders" shall have the meaning set forth in
Section 10.10(b).
"Superpriority Claim" shall mean a claim against the Borrower
and any Guarantor in any of the Cases which
is an administrative expense claim
having priority over any or all
administrative expenses of the kind specified
in Sections 503(b) or 507(b) of the
Bankruptcy Code.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions,
charges or withholdings imposed by any
Governmental Authority.
"Termination Date" shall mean the earliest to occur of (i)
the Prepayment Date, (ii) the Maturity
Date, (iii) the Consummation Date and
(iv) the acceleration of the Loans and the
termination of the Total Commitment
in accordance with the terms hereof.
"Termination Event" shall mean (i) a "reportable event", as
such term is described in Section 4043(c)
of ERISA (other than a "reportable
event" as to which the 30-day notice is
waived under subsection .22, .23, .25,
.27 or .28 of PBGC Regulation Section 4043)
or an event described in Section
4068 of ERISA and excluding events which
would not be reasonably likely (as
reasonably determined by the Agent) to have
a material adverse effect on the
financial condition, operations, business,
properties or assets of the Borrower
and the Guarantors taken as a whole, or
(ii) the withdrawal of the Borrower or
any ERISA Affiliate from a Multiple
Employer Plan during a plan year in which
it was a "substantial employer," as such
term is defined in Section 4001(a)(2)
of ERISA, the incurrence of liability by
the Borrower or any ERISA Affiliate
under Section 4064 of ERISA upon the
termination of a Multiple Employer Plan,
the imposition of Withdrawal Liability, or
(iii) providing notice of intent to
terminate a Plan pursuant to Section
4041(c) of ERISA or the treatment of a
Plan amendment as a termination under
Section 4041 of ERISA, if such amendment
requires the provision of security, or (iv)
the institution of proceedings to
terminate a Plan by the PBGC under Section
4042 of ERISA, or (v) any other
event or condition (other than the
commencement of the Cases and the failure to
have made any contribution accrued as of
the Filing Date but not paid) which
would reasonably be expected to constitute
grounds under Section 4042 of ERISA
for the termination of, or the appointment
of a trustee to administer, any
Plan, or the imposition of any liability
under Title IV of ERISA (other than
for the payment of premiums to the PBGC in
the ordinary course).
"Total Commitment" shall mean, at any time, the sum of the
Commitments at such time. The Total
Commitment on the Closing Date shall be
$50,000,000.
"Type" when used in respect of any Loan or Borrowing shall
refer to the Rate of interest by reference
to which interest on such Loan or on
the Loans comprising such Borrowing is
determined. For purposes hereof, "Rate"
shall mean the Adjusted LIBOR Rate and the
Alternate Base Rate.
"Unused Total
Commitment" shall mean, at any time, (i) the
Total Commitment less (ii) the sum of (x)
the aggregate outstanding principal
amount of all Loans and (y) the aggregate
Letter of Credit Outstandings.
"Weekly Cash Forecast" shall have the meaning set forth in
Section 5.01(m).
"Withdrawal Liability" shall have the meaning given such term
under Part I of Subtitle E of Title IV of
ERISA.
SECTION 1.02 Terms Generally. The definitions in Section 1.01
shall
apply equally to both 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. All
references herein to Sections,
Exhibits and Schedules shall be deemed
references to Sections of, and Exhibits
and Schedules to, this Agreement unless the
context shall otherwise require.
Except as otherwise expressly provided
herein, all terms of an accounting or
financial nature shall be construed in
accordance with GAAP, as in effect from
time to time; provided, however, that for
purposes of determining compliance
with any covenant set forth in Section 6,
such terms shall be construed in
accordance with GAAP as in effect on the
date of this Agreement applied on a
basis consistent with the application used
in the Borrower's audited financial
statements referred to in Section 3.04.
Terms that are defined in the Uniform
Commercial Code of the State of New York
shall have the same meaning herein
unless otherwise defined herein.
SECTION 2.
AMOUNT AND TERMS OF CREDIT
SECTION 2.01
Commitments of the Lenders.
(a) Each Lender severally and not jointly with the other
Lenders agrees, upon the terms and subject
to the conditions herein set forth
(including, without limitation, the
provisions of Section 2.28), to make
revolving credit loans (each a "Loan" and
collectively, the "Loans") to the
Borrower at any time and from time to time
during the period commencing on the
date of satisfaction (or waiver) of the
conditions set forth in Section 4.01
hereof and ending on the Termination Date
in an aggregate principal amount not
to exceed, when added to such Lender's
Commitment Percentage of the then
aggregate Letter of Credit Outstandings (in
excess of the amount of cash then
held in the Letter of Credit Account
pursuant to Section 2.03(b)), the
Commitment of such Lender, which Loans may
be repaid and reborrowed in
accordance with the provisions of this
Agreement; provided that no Loans shall
be made at any time if there are any funds
in the Escrow Account at such time.
At no time shall the sum of the then
outstanding aggregate principal amount of
the Loans plus the then aggregate Letter of
Credit Outstandings exceed the
lesser of (i) the Total Commitment of
$50,000,000, as the same may be reduced
from time to time pursuant to Section 2.10
and Section 2.13 and (ii) prior to
the entry of the Final Order, the amount
permitted by the Interim Order.
(b) Each Borrowing shall be made by the Lenders pro rata in
accordance with their respective
Commitments; provided, however, that the
failure of any Lender to make any Loan
shall not in itself relieve the other
Lenders of their obligations to lend.
SECTION 2.02
[Intentionally
Omitted].
SECTION 2.03
Letters of Credit.
(a) Upon the terms and subject to the conditions herein set
forth, the Borrower may request a Fronting
Lender, at any time and from time to
time after the date of satisfaction (or
waiver) of the conditions set forth in
Section 4.01 and prior to the Termination
Date, to issue, and, subject to the
terms and conditions contained herein, such
Fronting Lender shall issue, for
the account of the Borrower or a Guarantor
one or more Letters of Credit,
provided that no Letter of Credit shall be
issued if after giving effect to
such issuance (i) the aggregate Letter of
Credit Outstandings shall exceed
$15,000,000 or (ii) the aggregate Letter of
Credit Outstandings, when added to
the aggregate outstanding principal amount
of the Loans, would exceed the
lesser of (A) the Total Commitment and (B)
prior to the entry of the Final
Order, the amount permitted by the Interim
Order; provided that if there are
any funds in the Escrow Account at such
time, no Letter of Credit shall be
issued unless concurrently with such
issuance, an amount equal to 105% of the
face amount of such Letter of Credit (or,
if less, the amount then on deposit
in the Escrow Account) is transferred from
the Escrow Account to the Letter of
Credit Account for the Cash
Collateralization of such Letter of Credit; and
provided further that no Letter of Credit
shall be issued if the Fronting
Lender shall have received notice from the
Agent or the Required Lenders that
the conditions to such issuance have not
been met.
(b) Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (x) the
date that is one year after the
date of the issuance of such Letter of
Credit (or, in the case of any renewal
or extension thereof, one year after such
renewal or extension) and (y) the
date that is 180 days after the Maturity
Date; provided that any Letter of
Credit with a one-year term may provide for
the renewal thereof for additional
one-year periods (which shall in no event
extend beyond the date referred to in
clause (y) above). If any Letter of Credit
shall be outstanding on the
Termination Date, the Borrower shall, at or
prior to the Termination Date and
at any other time required by the Loan
Documents (i) cause all Letters of
Credit which expire after the Termination
Date to be returned to the Fronting
Lender undrawn and marked "cancelled" or
(ii) if the Borrower is unable to do
so in whole or in part, either (A) provide
a "back-to-back" letter of credit to
one or more Fronting Lenders in a form
satisfactory to such Fronting Lender and
the Agent (in their sole discretion),
issued by a Lender satisfactory to such
Fronting Lender and the Agent (in their
sole discretion), and in an amount
equal to 105% of the then undrawn stated
amount of all outstanding Letters of
Credit issued by such Fronting Lenders
(less the amount, if any, then on
deposit in the Letter of Credit Account)
and/or (B) deposit cash in the Letter
of Credit Account in an amount equal to
105% of the then undrawn stated amount
of all Letter of Credit Outstandings (less
the amount of cash, if any, then on
deposit in the Letter of Credit Account)
(the actions described in either
clause (A) or (B), "Cash
Collateralization") as collateral security for the
Borrower's reimbursement obligations in
connection therewith, such cash to be
remitted to the Borrower upon the
expiration, cancellation or other termination
or satisfaction of such reimbursement
obligations.
(c)
The Borrower shall pay to each Fronting Lender, in
addition to such other fees and charges as
are specifically provided for in
Section 2.21 hereof, such fees and charges
in connection with the issuance and
processing of the Letters of Credit issued
by such Fronting Lender as are
customarily imposed by such Fronting Lender
from time to time in connection
with letter of credit transactions.
(d) Drafts drawn under each Letter of Credit shall be
reimbursed by the Borrower in Dollars not
later than the first Business Day
following the date of draw and shall bear
interest from the date of draw until
the first Business Day following the date
of draw at a rate per annum equal to
the Alternate Base Rate plus 3.00% and
thereafter on the unreimbursed portion
until reimbursed in full at a rate per
annum equal to the Alternate Base Rate
plus 5.00% (computed on the basis of the
actual number of days elapsed over a
year of 360 days or when the Alternate Base
Rate is based on the Prime Rate a
year with 365 days or 366 days in a leap
year). The Borrower shall effect such
reimbursement (x) if such draw occurs prior
to the Termination Date, in cash or
through a Borrowing regardless of whether
the conditions precedent set forth in
Section 4.02 are then met or (y) if such
draw occurs on or after the
Termination Date, in cash. Each Lender
agrees to make the Loans described in
clause (x) of the preceding sentence
notwithstanding a failure to satisfy the
applicable lending conditions thereto or
the provisions of Section 2.28.
(e) Immediately upon the issuance of any Letter of Credit by
any Fronting Lender, such Fronting Lender
shall automatically be deemed to have
sold to each Lender other than such
Fronting Lender and each such other Lender
shall be deemed unconditionally and
irrevocably to have purchased from such
Fronting Lender, without recourse or
warranty, an undivided interest and
participation, to the extent of such
Lender's Commitment Percentage, in such
Letter of Credit, each drawing thereunder
and the obligations of the Borrower
and the Guarantors under this Agreement
with respect thereto. Upon any change
in the Commitments pursuant to Section
10.03, it is hereby agreed that with
respect to all Letter of Credit
Outstandings, there shall be an automatic
adjustment to the participations hereby
created to reflect the new Commitment
Percentages of the assigning and assignee
Lenders. Any action taken or omitted
by a Fronting Lender under or in connection
with a Letter of Credit, shall not
create for such Fronting Lender any
resulting liability to any other Lender
except to the extent that the actions or
inactions of the Fronting Lender with
respect to such Letter of Credit are
judicially determined to have constituted
bad faith, gross negligence or willful
misconduct.
(f) In the event that a Fronting Lender makes any payment
under any Letter of Credit and the Borrower
shall not have reimbursed such
amount in full to such Fronting Lender
pursuant to this Section, the Fronting
Lender shall promptly notify the Agent,
which shall promptly notify each Lender
of such failure, and each Lender shall
promptly and unconditionally pay to the
Agent (without defense, set-off,
counterclaim or other deduction) for the
account of the Fronting Lender the amount
of such Lender's Commitment
Percentage of such unreimbursed payment in
Dollars and in same day funds. If
the Fronting Lender so notifies the Agent,
and the Agent so notifies the
Lenders prior to 11:00 a.m. (New York City
time) on any Business Day, such
Lenders shall make available to the
Fronting Lender such Lender's Commitment
Percentage of the amount of such payment on
such Business Day in same day funds
and if the Agent notifies the Lenders after
11:00 a.m. (New York City time), on
the next Business Day. If and to the extent
such Lender shall not have so made
its Commitment Percentage of the amount of
such payment available to the
Fronting Lender, such Lender agrees to pay
to such Fronting Lender, forthwith
on demand such amount, together with
interest thereon, for each day from such
date until the date such amount is paid to
the Agent for the account of such
Fronting Lender at the Federal Funds
Effective Rate. The failure of any Lender
to make available to the Fronting Lender
its Commitment Percentage of any
payment under any Letter of Credit shall
not relieve any other Lender of its
obligation hereunder to make available to
the Fronting Lender its Commitment
Percentage of any payment under any Letter
of Credit on the date required, as
specified above, but no Lender shall be
responsible for the failure of any
other Lender to make available to such
Fronting Lender such other Lender's
Commitment Percentage of any such payment.
Whenever a Fronting Lender receives
a payment of a reimbursement obligation as
to which it has received any
payments from the Lenders pursuant to this
paragraph, such Fronting Lender
shall pay to each Lender which has paid its
Commitment Percentage thereof, in
Dollars and in same day funds, an amount
equal to such Lender's Commitment
Percentage thereof.
SECTION 2.04 Issuance. Whenever the Borrower desires a Fronting
Lender
to issue a Letter of Credit, it shall give
to such Fronting Lender and the
Agent prior written (including telegraphic,
telex, facsimile or cable
communication) notice reasonably in advance
of the requested date of issuance
specifying the date on which the proposed
Letter of Credit is to be issued
(which shall be a Business Day), the stated
amount of the Letter of Credit so
requested, the expiration date of such
Letter of Credit and the name and
address of the beneficiary thereof.
SECTION 2.05 Nature of Letter of Credit Obligations Absolute.
The
obligations of the Borrower to reimburse
the Lenders for drawings made under
any Letter of Credit shall be unconditional
and irrevocable and shall be paid
strictly in accordance with the terms of
this Agreement under all
circumstances, including, without
limitation (it being understood that any such
payment by the Borrower shall be without
prejudice to, and shall not constitute
a waiver of, any rights the Borrower might
have or might acquire as a result of
the payment by the Fronting Lender of any
draft or the reimbursement by the
Borrower thereof): (i) any lack of validity
or enforceability of any Letter of
Credit; (ii) the existence of any claim,
set-off, defense or other right which
the Borrower or any Guarantor may have at
any time against a beneficiary of any
Letter of Credit or against any of the
Lenders, whether in connection with this
Agreement, the transactions contemplated
herein or any unrelated transaction;
(iii) any draft, demand, certificate or
other document presented under any
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;
(iv) payment by a Fronting Lender of any
Letter of Credit against presentation
of a demand, draft or certificate or other
document which does not comply with
the terms of such Letter of Credit; (v) any
other circumstance or happening
whatsoever, which is similar to any of the
foregoing; or (vi) the fact that any
Event of Default or event which upon notice
or lapse of time or both would
constitute an Event of Default shall have
occurred and be continuing.
SECTION 2.06
Making of Loans.
---------------
(a) Except as contemplated by Section 2.11, Loans shall be
either ABR Loans or Eurodollar Loans as the
Borrower may request subject to and
in accordance with this Section, provided
that all Loans made pursuant to the
same Borrowing shall, unless otherwise
specifically provided herein, be Loans
of the same Type. Each Lender may fulfill
its Commitment with respect to any
Eurodollar Loan or ABR Loan by causing any
lending office of such Lender to
make such Loan; provided that any such use
of a lending office shall not affect
the obligation of the Borrower to repay
such Loan in accordance with the terms
of this Agreement. Each Lender shall,
subject to its overall policy
considerations, use reasonable efforts (but
shall not be obligated) to select a
lending office which will not result in the
payment of increased costs by the
Borrower pursuant to Section 2.15. Subject
to the other provisions of this
Section and the provisions of Section 2.12,
Borrowings of Loans of more than
one Type may be incurred at the same time,
provided that no more than ten (10)
Borrowings of Eurodollar Loans may be
outstanding at any time.
(b) The Borrower shall give the Agent prior notice of each
Borrowing hereunder of at least three
Business Days for Eurodollar Loans and
one Business Day for ABR Loans; such notice
shall be irrevocable and shall
specify the amount of the proposed
Borrowing (which shall not be less than
$1,000,000 (and integral multiples of
$1,000,000) in the case of Eurodollar
Loans and $500,000 (and integral multiples
of $100,000) in the case of ABR
Loans) and the date thereof (which shall be
a Business Day) and shall contain
disbursement instructions. Such notice, to
be effective, must be received by
the Agent not later than 1:00 p.m., New
York City time, on the third Business
Day in the case of Eurodollar Loans and
12:00 noon, New York City time on the
first Business Day in the case of ABR
Loans, preceding the date on which such
Borrowing is to be made; provided that same
day borrowings of ABR Loans in an
aggregate amount of up to $10,000,000 will
be available if notice is received
by the Agent no later than 11:00 a.m., New
York City time, on such day. With
respect to Borrowings other than same day
Borrowings, such notice shall specify
whether the Borrowing then being requested
is to be a Borrowing of ABR Loans or
Eurodollar Loans. If no election is made as
to the Type of Loan, such notice
shall be deemed a request for Borrowing of
ABR Loans. The Agent shall promptly
notify each Lender of its proportionate
share of such Borrowing, the date of
such Borrowing, the Type of Borrowing or
Loans being requested and the Interest
Period or Interest Periods applicable
thereto, as appropriate. On the borrowing
date specified in such notice, each Lender
shall make its share of the
Borrowing available at the office of the
Agent at 270 Park Avenue, New York,
New York 10017, no later than 12:00 noon,
New York City time, in immediately
available funds. Upon receipt of the funds
made available by the Lenders to
fund any borrowing hereunder, the Agent
shall disburse such funds in the manner
specified in the notice of borrowing
delivered by the Borrower and shall use
reasonable efforts to make the funds so
received from the Lenders available to
the Borrower no later than 2:00 p.m. New
York City time.
SECTION 2.07
Repayment of Loans; Evidence of Debt.
------------------------------------
(a) The Borrower hereby unconditionally promises to pay to
the Agent for the account of each Lender
the then unpaid principal amount of
each Loan on the Termination Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing
the indebtedness of the Borrower to
such Lender resulting from each Loan made
by such Lender, including the amounts
of principal and interest payable and paid
to such Lender from time to time
hereunder.
(c) The Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made
hereunder, the Type thereof and the
Interest Period applicable thereto, (ii)
the amount of any principal or
interest due and payable or to become due
and payable from the Borrower to each
Lender hereunder and (iii) the amount of
any sum received by the Agent
hereunder for the account of the Lenders
and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall
be prima facie evidence of the
existence and amounts of the obligations
recorded therein; provided that the
failure of any Lender or the Agent to
maintain such accounts or any error
therein shall not in any manner affect the
obligation of the Borrower to repay
the Loans in accordance with the terms of
this Agreement.
(e) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the
Borrower shall execute and deliver to
such Lender a promissory note payable to
the order of such Lender (or, if
requested by such Lender, to such Lender
and its registered assigns) in a form
furnished by the Agent and reasonably
acceptable to the Borrower. Thereafter,
the Loans evidenced by such promissory note
and interest thereon shall at all
times (including after assignment pursuant
to Section 10.03) be represented by
one or more promissory notes in such form
payable to the order of the payee
named therein (or, if such promissory note
is a registered note, to such payee
and its registered assigns).
SECTION 2.08
Interest on Loans.
-----------------
(a) Subject to the provisions of Section 2.09, each ABR Loan
shall bear interest (computed on the basis
of the actual number of days elapsed
over a year of 360 days or, when the
Alternate Base Rate is based on the Prime
Rate, a year with 365 days or 366 days in a
leap year) at a rate per annum
equal to the Alternate Base Rate plus
3.00%.
(b) Subject to the provisions of Section 2.09, each
Eurodollar Loan shall bear interest
(computed on the basis of the actual number
of days elapsed over a year of 360 days) at
a rate per annum equal, during each
Interest Period applicable thereto, to the
Adjusted LIBOR Rate for such
Interest Period in effect for such
Borrowing plus 4.00%.
(c) Accrued interest on all Loans shall be payable monthly in
arrears on each Interest Payment Date
applicable thereto, on the Termination
Date, after the Termination Date on demand
and (with respect to Eurodollar
Loans) upon any repayment or prepayment
thereof (on the amount prepaid).
SECTION 2.09 Default Interest. In the event that, and for so long
as,
any Event of Default shall have occurred
and be continuing, the Borrower and
the Guarantors shall on demand from time to
time pay interest, to the extent
permitted by law, on all Loans and overdue
amounts (after as well as before
judgment) (i) in the case of Borrowings
consisting of Eurodollar Loans, at two
percent (2%) in excess of the rate then in
effect for each such Eurodollar Loan
and (ii) in the case of all other amounts,
at two percent (2%) in excess of the
rate then in effect for ABR Loans for each
such amount.
SECTION 2.10 Optional Termination or Reduction of Commitment. Upon
at
least two Business Days' prior written
notice to the Agent, the Borrower may at
any time in whole permanently terminate, or
from time to time in part
permanently reduce, the Unused Total
Commitment. Each such reduction of the
Commitments shall be in the principal
amount of $5,000,000 or any integral
multiple thereof. Simultaneously with each
reduction or termination of the
Commitment, the Borrower shall pay to the
Agent for the account of each Lender
the Commitment Fee accrued and unpaid on
the amount of the Commitment of such
Lender so terminated or reduced through the
date thereof. Any reduction of the
Total Commitment pursuant to this Section
shall be applied to reduce the
Commitment of each Lender, pro rata
according to each such Lender's Commitment
Percentage.
SECTION 2.11 Alternate Rate of Interest. In the event, and on
each
occasion, that on the day two Business Days
prior to the commencement of any
Interest Period for a Eurodollar Loan, the
Agent shall have determined (which
determination shall be conclusive and
binding upon the Borrower absent manifest
error) that reasonable means do not exist
for ascertaining the applicable
Adjusted LIBOR Rate, the Agent shall, as
soon as practicable thereafter, give
written, facsimile or telegraphic notice of
such determination to the Borrower
and the Lenders, and any request by the
Borrower for a Borrowing of Eurodollar
Loans (including pursuant to a refinancing
with Eurodollar Loans) pursuant to
Section 2.06 or 2.12 shall be deemed a
request for a Borrowing of ABR Loans.
After such notice shall have been given and
until the circumstances giving rise
to such notice no longer exist, each
request for a Borrowing of Eurodollar
Loans shall be deemed to be a request for a
Borrowing of ABR Loans.
SECTION 2.12 Refinancing of Loans. The Borrower shall have the
right,
at any time, on three (3) Business Days'
prior irrevocable notice to the Agent
(which notice, to be effective, must be
received by the Agent not later than
1:00 p.m., New York City time, on the third
Business Day preceding the date of
any refinancing), (x) to refinance (without
the satisfaction of the conditions
set forth in Section 4 as a condition to
such refinancing) any outstanding
Borrowing or Borrowings of Loans of one
Type (or a portion thereof) with a
Borrowing of Loans of the other Type or (y)
to continue an outstanding
Borrowing of Eurodollar Loans for an
additional Interest Period, subject to the
following:
(a) as a condition to the refinancing of ABR Loans with
Eurodollar Loans and to the continuation of
Eurodollar Loans for an additional
Interest Period, no Event of Default shall
have occurred and be continuing at
the time of such refinancing;
(b) if less than a full Borrowing of Loans shall be
refinanced, such refinancing shall be made
pro rata among the Lenders in
accordance with the respective principal
amounts of the Loans comprising such
Borrowing held by the Lenders immediately
prior to such refinancing;
(c) the aggregate principal amount of Loans being refinanced
shall be at least $1,000,000, provided that
no partial refinancing of a
Borrowing of Eurodollar Loans shall result
in the Eurodollar Loans remaining
outstanding pursuant to such Borrowing
being less than $1,000,000 in aggregate
principal amount;
(d) each Lender shall effect each refinancing by applying the
proceeds of its new Eurodollar Loan or ABR
Loan, as the case may be, to its
Loan being refinanced;
(e) the Interest Period with respect to a Borrowing of
Eurodollar Loans effected by a refinancing
or in respect to the Borrowing of
Eurodollar Loans being continued as
Eurodollar Loans shall commence on the date
of refinancing or the expiration of the
current Interest Period applicable to
such continuing Borrowing, as the case may
be;
(f) a Borrowing of Eurodollar Loans may be refinanced only on
the last day of an Interest Period
applicable thereto; and
(g) each request for a refinancing with a Borrowing of
Eurodollar Loans which fails to state an
applicable Interest Period shall be
deemed to be a request for an Interest
Period of one month.
In the event that the Borrower shall not
give notice to refinance any Borrowing
of Eurodollar Loans, or to continue such
Borrowing as Eurodollar Loans, or
shall not be entitled to refinance or
continue such Borrowing as Eurodollar
Loans, in each case as provided above, such
Borrowing shall automatically be
refinanced with a Borrowing of ABR Loans at
the expiration of the then-current
Interest Period. The Agent shall, after it
receives notice from the Borrower,
promptly give each Lender notice of any
refinancing, in whole or part, of any
Loan made by such Lender.
SECTION 2.13
Mandatory Prepayment; Commitment Termination;
Cash Collateral.
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(a) If at any time the aggregate principal amount of the
outstanding Loans plus the Letter of Credit
Outstandings exceeds the lesser of
(x) the Total Commitment and (y) prior to
the entry of the Final Order, the
amount permitted by the Interim Order (the
"Lesser Amount"), the Borrower will
no later than the next Business Day (i)
prepay the Loans in an amount necessary
to cause the aggregate principal amount of
the outstanding Loans plus the
aggregate Letter of Credit Outstandings to
be equal to or less than the Lesser
Amount, and (ii) if, after giving effect to
the prepayment in full of the
Loans, the Letter of Credit Outstandings in
excess of the amount of cash held
in the Letter of Credit Account exceeds the
Lesser Amount, deposit into the
Letter of Credit Account an amount equal to
105% of the amount by which the
aggregate Letter of Credit Outstandings in
excess of the amount of cash held in
the Letter of Credit Account so exceeds the
Lesser Amount.
(b) If any Net Proceeds are received by or on behalf of the
Borrower or any of its Subsidiaries in
respect of any Reduction Event, the
Borrower shall, immediately after such Net
Proceeds are received, apply an
amount equal to 100% of the Net Proceeds
thereof (i) first, to the prepayment
of the Loans; (ii) second, after the Loans
have been prepaid in full, to the
Cash Collateralization of the Letters of
Credit; and (iii) third, after the
Cash Collateralization of all Letters of
Credit, to depositing any remaining
amount in the Escrow Account. Upon any such
prepayment, the Total Commitment
shall be automatically and permanently
reduced in an amount equal to (x) if
such Reduction Event is an Asset
Disposition, 100% of any Core Asset Sale
Proceeds of such Reduction Event or (y) if
such Reduction Event is a Specified
Reduction Event, 100% of the Net Proceeds
of such Reduction Event. With respect
to any other prepayments made pursuant to
this Section 2.13(b), the Total
Commitment shall not be reduced.
(c) Notwithstanding the foregoing Section 2.13(b), so long as
no Event of Default shall have occurred and
be continuing, in the event that
the application of any mandatory prepayment
under Section 2.13(b) above would
result in the Borrower incurring breakage
costs of the type described in clause
(i) of the first sentence of Section
2.14(b), upon such receipt of the
prepayment of the Revolving Loans as
provided above, unless otherwise requested
by the Borrower at the time of such
mandatory prepayment, the Administrative
Agent shall deposit such Net Proceed in the
Escrow Account until the earlier to
occur of (x) the first date on which such
application would not give rise to
the incurrence by the Borrower of breakage
costs pursuant to Section 2.14(e)
(Special Provisions Governing Eurodollar
Rate Loans) and (y) the occurrence of
an Event of Default, at which time the
Administrative Agent shall apply such
Net Proceeds (to the extent still
available) to prepayment of the Loans.
(d) Upon the
Termination Date, the Total Commitment shall be
terminated in full and the Borrower shall
pay the Loans in full (plus any
accrued but unpaid interest thereon) and,
except as the Agent may otherwise
agree in writing, if any Letter of Credit
remains outstanding shall provide
Cash Collateralization in accordance with
Section 2.03(b).
SECTION 2.14
Optional Prepayment of Loans; Reimbursement of
Lenders.
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(a) The Borrower shall have the right at any time and from
time to time to prepay any Loans, in whole
or in part, (x) with respect to
Eurodollar Loans, upon at least three
Business Days' prior written or facsimile
notice to the Agent and (y) with respect to
ABR Loans on the same Business Day
if written or facsimile notice is received
by the Agent prior to 12:00 noon,
New York City time, and thereafter upon at
least one Business Day's prior
written or facsimile notice to the Agent;
provided that (i) each such partial
prepayment shall be in multiples of
$1,000,000, (ii) no prepayment of
Eurodollar Loans shall be permitted
pursuant to this Section 2.14(a) other than
on the last day of an Interest Period
applicable thereto unless such prepayment
is accompanied by the payment of the
amounts described in clause (i) of the
first sentence of Section 2.14(b), and
(iii) no partial prepayment of a
Borrowing of Eurodollar Loans shall result
in the aggregate principal amount of
the Eurodollar Loans remaining outstanding
pursuant to such Borrowing being
less than $1,000,000. Each notice of
prepayment shall specify the prepayment
date, the principal amount of the Loans to
be prepaid and in the case of
Eurodollar Loans, the Borrowing or
Borrowings pursuant to which made, shall be
irrevocable and shall commit the Borrower
to prepay such Loan by the amount and
on the date stated therein. The Agent
shall, promptly after receiving notice
from the Borrower hereunder, notify each
Lender of the principal amount of the
Loans held by such Lender which are to be
prepaid, the prepayment date and the
manner of application of the
prepayment.
(b) The Borrower shall reimburse each Lender on demand for
any loss incurred or to be incurred by it
in the reemployment of the funds
released (i) resulting from any prepayment
(for any reason whatsoever,
including, without limitation, refinancing
with ABR Loans) of any Eurodollar
Loan required or permitted under this
Agreement, if such Loan is prepaid other
than on the last day of the Interest Period
for such Loan (including, without
limitation, any such prepayment in
connection with the syndication of the
credit facility evidenced by this
Agreement) or (ii) in the event that after
the Borrower delivers a notice of borrowing
under Section 2.06 in respect of
Eurodollar Loans, such Loans are not made
on the first day of the Interest
Period specified in such notice of
borrowing for any reason other than a breach
by such Lender of its obligations
hereunder. Such loss shall be the amount as
reasonably determined by such Lender as the
excess, if any, of (A) the amount
of interest which would have accrued to
such Lender on the amount so paid or
not borrowed at a rate of interest equal to
the Adjusted LIBOR Rate for such
Loan, for the period from the date of such
payment or failure to borrow to the
last day (x) in the case of a payment or
refinancing with ABR Loans other than
on the last day of the Interest Period for
such Loan, of the then current
Interest Period for such Loan, or (y) in
the case of such failure to borrow, of
the Interest Period for such Loan which
would have commenced on the date of
such failure to borrow, over (B) the amount
of interest which would have
accrued to such Lender on such amount by
placing such amount on deposit for a
comparable period with leading Lenders in
the London interbank market. Upon
request, each Lender shall deliver to the
Borrower from time to time one or
more certificates setting forth the amount
of such loss as determined by such
Lender, which certificate shall be
conclusive as to matters stated therein.
(c) In the event the Borrower fails to prepay any Loan on the
date specified in any prepayment notice
delivered pursuant to Section 2.14(a),
the Borrower on demand by any Lender shall
pay to the Agent for the account of
such Lender any amounts required to
compensate such Lender for any loss
incurred by such Lender as a result of such
failure to prepay, including,
without limitation, any loss, cost or
expenses incurred by reason of the
acquisition of deposits or other funds by
such Lender to fulfill deposit
obligations incurred in anticipation of
such prepayment, but without
duplication of any amounts paid under
Section 2.14(b). Each Lender shall
deliver to the Borrower from time to time
one or more certificates setting
forth the amount of such loss as determined
by such Lender.
(d) Any partial prepayment of the Loans by the Borrower
pursuant to Sections 2.13 or 2.14 shall be
applied as specified by the Borrower
or, in the absence of such specification as
provided for in Section 8.02(b),
provided that in the latter case no
Eurodollar Loans shal
