CREDIT AGREEMENT
DATED AS OF
JULY 14, 1999
AMONG
JATO OPERATING CORP.,
JATO COMMUNICATIONS CORP.,
THE LENDERS PARTY HERETO,
STATE STREET BANK AND
TRUST COMPANY,
AS COLLATERAL AGENT,
AND
LUCENT TECHNOLOGIES INC.,
AS ADMINISTRATIVE AGENT
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TABLE OF CONTENTS
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PAGE
ARTICLE I Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.01. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . .1
Section 1.02. Classification of Loans and Borrowings. . . . . . . . . . . . 21
Section 1.03. Terms Generally . . . . . . . . . . . . . . . . . . . . . . . 21
Section 1.04. Accounting Terms; GAAP. . . . . . . . . . . . . . . . . . . . 22
ARTICLE II The Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.01. Commitments . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.02. Loans and Borrowings. . . . . . . . . . . . . . . . . . . . . 22
Section 2.03. Requests for Borrowings . . . . . . . . . . . . . . . . . . . 23
Section 2.04. Funding of Borrowings . . . . . . . . . . . . . . . . . . . . 24
Section 2.05. Interest Elections. . . . . . . . . . . . . . . . . . . . . . 24
Section 2.06. Termination and Reduction of Commitments. . . . . . . . . . . 26
Section 2.07. Repayment of Loans; Evidence of Debt. . . . . . . . . . . . . 26
Section 2.08. Amortization of Loans . . . . . . . . . . . . . . . . . . . . 27
Section 2.09. Prepayment of Loans . . . . . . . . . . . . . . . . . . . . . 28
Section 2.10. Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.11. Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.12. Alternate Rate of Interest. . . . . . . . . . . . . . . . . . 30
Section 2.13. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.14. Break Funding Payments; Prepayment Fees . . . . . . . . . . . 31
Section 2.15. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.17. Mitigation Obligations; Replacement of Lenders. . . . . . . . 35
ARTICLE III Representations and Warranties. . . . . . . . . . . . . . . . . . . 36
Section 3.01. Organization; Powers. . . . . . . . . . . . . . . . . . . . . 36
Section 3.02. Authorization; Enforceability . . . . . . . . . . . . . . . . 36
Section 3.03. Governmental Approvals; No Conflicts. . . . . . . . . . . . . 36
Section 3.04. Financial Condition; No Material Adverse Change . . . . . . . 36
Section 3.05. Properties and Licenses . . . . . . . . . . . . . . . . . . . 37
Section 3.06. Litigation and Environmental Matters. . . . . . . . . . . . . 37
Section 3.07. Compliance with Laws and Agreements . . . . . . . . . . . . . 38
Section 3.08. Investment and Holding Company Status . . . . . . . . . . . . 38
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Section 3.09. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.10. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 3.11. Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.12. Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.13. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.14. Labor Matters . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.15. Supply Agreement. . . . . . . . . . . . . . . . . . . . . . . 39
Section 3.16. Security Documents. . . . . . . . . . . . . . . . . . . . . . 39
Section 3.17. Year 2000 Readiness . . . . . . . . . . . . . . . . . . . . . 39
Section 3.18. Capitalization. . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IV Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.01. Effective Date. . . . . . . . . . . . . . . . . . . . . . . . 40
Section 4.02. Each Borrowing. . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE V Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.01. Financial Statements and Other Information. . . . . . . . . . 44
Section 5.02. Notices of Material Events. . . . . . . . . . . . . . . . . . 45
Section 5.03. Information Regarding Collateral. . . . . . . . . . . . . . . 46
Section 5.04. Existence; Conduct of Business. . . . . . . . . . . . . . . . 47
Section 5.05. Payment of Obligations. . . . . . . . . . . . . . . . . . . . 47
Section 5.06. Maintenance of Properties . . . . . . . . . . . . . . . . . . 47
Section 5.07. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.08. Books and Records; Inspection Rights. . . . . . . . . . . . . 48
Section 5.09. Compliance with Laws and Agreements . . . . . . . . . . . . . 48
Section 5.10. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . 49
Section 5.11. Further Assurances. . . . . . . . . . . . . . . . . . . . . . 49
Section 5.12. Casualty and Condemnation . . . . . . . . . . . . . . . . . . 49
Section 5.13. Interest Rate Protection. . . . . . . . . . . . . . . . . . . 49
Section 5.14. Execution of Pledge Agreement (Borrower); Subsidiary
Guarantors; Additional Security Documents . . . . . . . . . . 50
ARTICLE VI Negative Covenants. . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 6.01. Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 6.02. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
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Section 6.03. Fundamental Changes . . . . . . . . . . . . . . . . . . . . . 53
Section 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions; Asset Sales. . . . . . . . . . . . . . . . . . .53
Section 6.05. Hedging Agreements. . . . . . . . . . . . . . . . . . . . . . 56
Section 6.06. Restricted Payments . . . . . . . . . . . . . . . . . . . . . 56
Section 6.07. Transactions with Affiliates. . . . . . . . . . . . . . . . . 57
Section 6.08. Restrictive Agreements. . . . . . . . . . . . . . . . . . . . 57
Section 6.09. Repayment of Indebtedness . . . . . . . . . . . . . . . . . . 57
Section 6.10. Limitation on Sale-Leaseback Transactions . . . . . . . . . . 57
Section 6.11. Senior Indebtedness to Total Capitalization . . . . . . . . . 57
Section 6.12. Consolidated Indebtedness to Total Capitalization . . . . . . 58
Section 6.13. Consolidated Indebtedness to Annualized EBITDA. . . . . . . . 58
Section 6.14. Senior Indebtedness to Annualized EBITDA. . . . . . . . . . . 59
Section 6.15. Annualized EBITDA to Consolidated Interest Expense. . . . . . 59
Section 6.16. Annualized EBITDA to Consolidated Debt Service. . . . . . . . 60
Section 6.17. Consolidated Gross Revenues . . . . . . . . . . . . . . . . . 60
Section 6.18. Minimum Subscribers . . . . . . . . . . . . . . . . . . . . . 61
Section 6.19. Consolidated Parent Indebtedness to Total Parent
Capitalization. . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.20. Consolidated Parent Indebtedness to Annualized Parent
EBITDA. . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 6.21. Use of Collateral . . . . . . . . . . . . . . . . . . . . . . 62
ARTICLE VII Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE VIII The Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE IX Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 9.01. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 9.02. Waivers; Amendments . . . . . . . . . . . . . . . . . . . . . 68
Section 9.03. Expenses; Indemnity; Damage Waiver. . . . . . . . . . . . . . 69
Section 9.04. Successors and Assigns. . . . . . . . . . . . . . . . . . . . 70
Section 9.05. Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.06. Counterparts; Integration; Effectiveness. . . . . . . . . . . 73
Section 9.07. Severability. . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 9.08. Right of Setoff . . . . . . . . . . . . . . . . . . . . . . . 73
Section 9.09. Governing Law; Jurisdiction; Consent to Service of
Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
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Section 9.10. WAIVER OF JURY TRIAL. . . . . . . . . . . . . . . . . . . . . 74
Section 9.11. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.13. Interest Rate Limitation. . . . . . . . . . . . . . . . . . . 75
EXHIBITS:
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Guarantee Agreement
Exhibit C Form of Indemnity and Contribution Agreement
Exhibit D Form of Security Agreement (Borrower)
Exhibit E Form of Pledge Agreement (Borrower)
Exhibit F Form of Pledge Agreement (Parent)
Exhibit G Form of Landlord Letter
Exhibit H Form of Security Agreement (Parent)
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CREDIT AGREEMENT, dated as of July 14, 1999, among JATO OPERATING CORP.,
a Delaware corporation, JATO COMMUNICATIONS CORP., a Delaware corporation, the
LENDERS party hereto, STATE STREET BANK AND TRUST COMPANY, as Collateral Agent,
and LUCENT TECHNOLOGIES INC., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"ADDITIONAL ASSETS" means any capital assets used or useful in the
business of the Borrower and the Subsidiaries.
"ADJUSTED LIBO RATE" means, with respect to any LIBOR Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"ADMINISTRATIVE AGREEMENT" means the Financing and Management
Services Agreement, dated as of July 14, 1999, by and between the Parent and the
Borrower, as in effect on the date hereof.
"ADMINISTRATIVE AGENT" means Lucent, in its capacity as
administrative agent for the Lenders hereunder.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"AGENTS" means the Administrative Agent and the Collateral Agent.
"ALTERNATE BASE RATE" means, 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 [ * ]. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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"ANNUALIZED EBITDA" means, as of any date of determination,
Consolidated EBITDA for the period of two fiscal quarters then most recently
ended times two.
"ANNUALIZED PARENT EBITDA" means, as of any date of determination,
Consolidated Parent EBITDA for the period of two fiscal quarters then most
recently ended times two.
"APPLICABLE RATE" means, for any day, with respect to any Loan,
the applicable rate per annum set forth below under the caption "ABR Spread" or
"Eurodollar Spread", as the case may be:
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ABR Spread Eurodollar Spread
--------------- ---------------- ---------------------
Tranche 1 Loans 3.5% 4.5%
Tranche 2 Loans 3.5% 4.5%
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of the Borrower and
Administrative Agent if required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved by the
Administrative Agent.
"AVAILABILITY PERIOD" means, in respect of the Tranche 1 Loans,
the Tranche 1 Availability Period and, in respect of the Tranche 2 Loans,
Tranche 2 Availability Period.
"BOARD" means the Board of Governors of the Federal Reserve System
of the United States of America.
"BORROWER" means Jato Operating Corp., a Delaware corporation.
"BORROWER-RELATED COLLATERAL" has the meaning set forth in the
Security Agreement (Parent).
"BORROWING" means a Loan or group of Loans of the same Class and
Type, made, converted or continued on the same date and, in the case of LIBOR
Loans, as to which a single Interest Period is in effect.
"BORROWING REQUEST" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; PROVIDED that, when used in connection with a LIBOR
Loan, the term "BUSINESS DAY" shall also exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"BUSINESS PLAN" means, for any fiscal year, the business plan of
the Borrower and the Subsidiaries for such fiscal year.
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"CAPITAL EXPENDITURES" means, for any period, the additions to
property, plant and equipment and other capital expenditures of the Borrower and
the Subsidiaries that are (or would be) set forth in a consolidated statement of
cash flows of the Borrower for such period prepared in accordance with GAAP.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) prior to the issuance and sale of
capital stock of the Parent pursuant to an initial public offering registered
under the Securities Act (i) the acquisition of beneficial ownership,
directly or indirectly, by any Person or group (within the meaning of the
Securities Exchange Act), other than the Founders or the Series B Investors,
of shares representing more than [ * ] of the aggregate ordinary voting
power represented by the issued and outstanding capital stock of the Parent;
(ii) occupation of a majority of the seats (other than vacant seats) on the
Board of Directors of the Parent by persons other than one person designated
by CEA Capital Partners USA, L.P., one person designated by Crest
Communications Partners, L.P., the chief executive officer of the Parent, one
person designated by the chief executive officer of the Parent and one person
designated by such other four persons; (iii) a majority of the persons
appointed by the Board of Directors of the Parent as Senior Officers as of
the date hereof shall cease to be Senior Officers; (iv) beneficial ownership,
directly or indirectly, by the Founders of less than [ * ] of the aggregate
ordinary voting power represented by the issued and outstanding capital stock
of the Parent; and (v) the failure of Brian Gast to be a member of the Board
of Directors of the Parent other than by reason of death or permanent
disability or removal for "cause," which shall include without limitation (A)
gross negligence or willful misconduct, (B) failure to perform diligently and
competently his duties as a director and as chief executive officer, or (C)
conviction of a felony; (b) following the issuance and sale of capital stock
of the Parent pursuant to an initial public offering registered under the
Securities Act, (i) the acquisition of beneficial ownership, directly or
indirectly, by any Person or group (within the meaning of Securities Exchange
Act) other than the Founders, of shares representing more than 50% of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Parent; or (ii) occupation of a majority of the seats
(other than vacant seats) on the Board of Directors of the Parent by Persons
who were neither (A) recommended by the Board of Directors of the Parent to
be elected by the stockholders of the Parent nor (B) appointed by directors
so nominated; or (c) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person other than the Parent or a wholly
owned Subsidiary of any ownership or equity interest in the Borrower.
"CHANGE IN LAW" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender's holding company, if any) with any request, guideline or directive
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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(whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
"CLASS", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are Tranche 1
Loans or Tranche 2 Loans.
"CODE" means the Internal Revenue Code of 1986, as amended from
time to time.
"COLLATERAL" means any and all "Collateral" as defined in the
Security Agreements.
"COLLATERAL AGENT" means State Street Bank and Trust Company, in
its capacity as collateral agent for the Secured Parties.
"COMMITMENT" means, with respect to each Lender, the commitment,
if any, of such Lender to make Loans hereunder during any Availability Period,
expressed as an amount representing the maximum principal amount of the Loans to
be made by such Lender hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.06 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $50,000,000.
"CONSOLIDATED DEBT SERVICE" means, for any period, Consolidated
Interest Expense for such period plus any scheduled payments of principal of
Indebtedness of the Borrower and the Subsidiaries during such period.
"CONSOLIDATED EBITDA" means, for any period, Consolidated Net
Income for such period (adjusted to exclude all extraordinary items and
Non-Recurring Items), plus, without duplication and to the extent deducted from
revenues in determining Consolidated Net Income, the sum of (a) the aggregate
amount of Consolidated Interest Expense for such period, (b) the aggregate
amount of income tax expense for such period, and (c) all amounts attributable
to depreciation and amortization for such period plus, without duplication,
preferred stock dividends payable in cash in respect of any Disqualified Stock
of the Borrower or any Subsidiary for such period, all as determined on a
consolidated basis with respect to the Borrower and the Subsidiaries in
accordance with GAAP.
"CONSOLIDATED GROSS REVENUES" means, for any period, consolidated
gross revenues of the Borrower and the Subsidiaries attributable to sales of its
services to Subscribers (and in any event excluding all revenues arising from
the sales of equipment).
"CONSOLIDATED INDEBTEDNESS" means, as of any date of
determination, the aggregate principal amount of Indebtedness (including
Disqualified Stock) of the Borrower and the Subsidiaries outstanding as of such
date determined on a consolidated basis in accordance with GAAP.
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"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum of
(a) the interest expense, both expensed and capitalized (including the interest
component in respect of Capital Lease Obligations, but excluding any such
interest expense of any Person for any period that the income (or loss) of such
Person is excluded from the calculation of Consolidated Net Income by reason of
clause (b) of the definition of "Consolidated Net Income"), accrued by the
Borrower and the Subsidiaries during such period plus (b) preferred stock
dividends in respect of Disqualified Stock of the Borrower and the Subsidiaries
for such period, in each case determined on a consolidated basis in accordance
with GAAP.
"CONSOLIDATED NET INCOME" means, for any period, net income or
loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; PROVIDED that there shall be
excluded (a) the income of any Person in which any other Person (other than the
Borrower or any Subsidiary or any director holding qualifying shares in
compliance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions (including distributions made as
a return of capital or repayment of principal of advances) actually paid to the
Borrower or any Subsidiary by such Person, and (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary or the date such Person's
assets are acquired by the Borrower or any Subsidiary.
"CONSOLIDATED PARENT EBITDA" means, for any period, Consolidated
Parent Net Income for such period (adjusted to exclude all extraordinary items
and Non-Recurring Parent Items), plus, without duplication and to the extent
deducted from revenues in determining Consolidated Parent Net Income, the sum of
(a) the aggregate amount of Consolidated Parent Interest Expense for such
period, (b) the aggregate amount of income tax expense for such period, and (c)
all amounts attributable to depreciation and amortization for such period plus,
without duplication, preferred stock dividends payable in cash in respect of any
Disqualified Stock of the Parent, the Borrower or any Subsidiary for such
period, all as determined on a consolidated basis with respect to the Parent,
the Borrower and the Subsidiaries in accordance with GAAP.
"CONSOLIDATED PARENT INDEBTEDNESS" means, as of any date of
determination, the aggregate principal amount of Indebtedness (including
Disqualified Stock) of the Parent, the Borrower and the Subsidiaries outstanding
as of such date determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED PARENT INTEREST EXPENSE" means, for any period, the
sum of (a) the interest expense, both expensed and capitalized (including the
interest component in respect of Capital Lease Obligations, but excluding any
such interest expense of any Person for any period that the income (or loss) of
such Person is excluded from the calculation of Consolidated Parent Net Income
by reason of clause (b) of the definition of "Consolidated Parent Net Income"),
accrued by the Parent, the Borrower and the Subsidiaries during such period plus
(b) preferred stock dividends in respect of Disqualified Stock of the Parent,
the Borrower and the Subsidiaries for such period, in each case determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED PARENT NET INCOME" means, for any period, net income
or loss of the Parent, the Borrower and the Subsidiaries for such period
determined on a consolidated basis
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in accordance with GAAP; PROVIDED that there shall be excluded (a) the income of
any Person in which any other Person (other than the Parent, the Borrower or any
Subsidiary or any director holding qualifying shares in compliance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions (including distributions made as a return of
capital or repayment of principal of advances) actually paid to the Parent, the
Borrower or any Subsidiary by such Person, and (b) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Parent, the Borrower or any Subsidiary or the date such
Person's assets are acquired by the Parent, the Borrower or any Subsidiary.
"CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "CONTROLLING" and "CONTROLLED" have meanings correlative thereto.
"DEFAULT" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"DISCLOSED MATTERS" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 3.06.
"DISQUALIFIED STOCK" means any capital stock of any Person which
by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable or exercisable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock, (iii) requires the payment of dividends other than dividends
payable solely in additional shares of capital stock of such Person (other than
Disqualified Stock) or (iv) is redeemable or subject to required repurchase at
the option of the holder thereof, in whole or in part.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"EFFECTIVE DATE" means the date on which the conditions specified
in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"ELIGIBLE INSTITUTION" means a commercial banking institution that
has a combined capital and surplus of not less than $500 million (or its
equivalent in foreign currency) whose debt is rated "A" or better by S&P or "A2"
or better by Moody's at the time as of which any investment or rollover therein
is made.
"ELIGIBLE PERSON" means (a) a commercial bank, an insurance
company or other similar financial institution or (b) any other entity which is
(or which is managed by a manager which manages funds which are) primarily
engaged in making, purchasing or otherwise investing in commercial loans or
extending, or investing in extensions of, credit for its own account in the
ordinary course of business; PROVIDED, HOWEVER, that in no event may any Person
be an Eligible Person if it is engaged in a Qualifying Business or if it is
Controlled by a Person that is engaged in a Qualifying Business.
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"ENVIRONMENTAL LAWS" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Parent or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"EVENT OF DEFAULT" has the meaning assigned to such term in
Article VII.
"EXCESS CASH FLOW" means, for any fiscal year of the Borrower, the
sum (without duplication) of the following (provided that Excess Cash Flow shall
be zero for any fiscal year that the sum of the following would otherwise be
less than zero):
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(a) Consolidated Net Income for such fiscal year, adjusted to
exclude any gains or losses attributable to Prepayment Events; PLUS
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining such Consolidated Net Income for such fiscal year
(including any interest expense accrued for such fiscal year that is not payable
currently in cash to the extent deducted in determining Consolidated Net
Income); PLUS
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such fiscal year plus (ii) the amount, if any, by which
the consolidated deferred revenues of the Borrower and the Subsidiaries
increased during such fiscal year plus (iii) the aggregate principal amount of
Capital Lease Obligations and other Indebtedness incurred by the Borrower or any
of the Subsidiaries during such fiscal year to finance Capital Expenditures, to
the extent that principal payments in respect of such Indebtedness would not be
excluded from clause (f) below when made; MINUS
(d) the sum of (i) any non-cash gains included in determining
such Consolidated Net Income for such fiscal year plus (ii) the amount, if any,
by which Net Working Capital increased during such fiscal year plus (iii) the
amount, if any, by which the consolidated deferred revenues of the Borrower and
the Subsidiaries decreased during such fiscal year; minus
(e) Capital Expenditures for such fiscal year; minus
(f) the aggregate principal amount of Indebtedness, repaid or
prepaid by the Borrower and the Subsidiaries during such fiscal year, excluding
(i) Loans prepaid pursuant to Section 2.09(b) or (c), (ii) repayments or
prepayments of Indebtedness financed by incurring other Indebtedness, to the
extent that mandatory principal payments in respect of such other Indebtedness
would not be excluded from this clause (f) when made and (iii) Indebtedness
referred to in clause (ii) of Section 6.01.
"EXCLUDED TAXES" means, with respect to either Agent, any 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 (other than an assignee pursuant to a request by the Borrower under
Section 2.17(b)), 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 2.15(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 2.15(a).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds
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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 that
is a Business Day, the average (rounded upwards, if necessary, to the next 1/100
of 1%) of the quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"FINANCIAL OFFICER" means, with respect to any Person, the chief
executive officer, the chief financial officer, principal accounting officer,
treasurer or controller of such Person.
"FOREIGN LENDER" means any Lender that is organized under the laws
of a jurisdiction other than the United States of America, any State thereof or
the District of Columbia.
"FOUNDERS" means Brian Gast, Leonard Allsup, Bruce E. Dines, Rex
H. Humston and Patrick M. Green.
"GAAP" means, subject to Section 1.04, generally accepted
accounting principles in the United States of America.
"GOVERNMENTAL AUTHORITY" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"GUARANTEE" of or by any Person (the "GUARANTOR") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "PRIMARY OBLIGOR") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; PROVIDED, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"GUARANTEE AGREEMENT" means the Guarantee and Subordination
Agreement among the Parent, the Subsidiaries and the Administrative Agent,
substantially in the form of Exhibit B.
"HAZARDOUS MATERIALS" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon
9
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gas, infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"HEDGING AGREEMENT" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person upon which interest charges are customarily paid, (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business that are
not overdue by more than 60 days), (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g)
all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances and (k) all Disqualified Stock of such Person.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor. The
amount outstanding at any time of any Indebtedness issued with original issue
discount is the face amount of such Indebtedness less the remaining unamortized
portion of the original issue discount of such Indebtedness at such time as
determined in conformity with GAAP.
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"INDEMNITY AND CONTRIBUTION AGREEMENT" means the Indemnity,
Subrogation and Contribution Agreement among the Loan Parties and the
Administrative Agent, substantially in the form of Exhibit C.
"INTEREST ELECTION REQUEST" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
"INTEREST PAYMENT DATE" means (a) with respect to any ABR Loan,
the last day of each March, June, September and December and (b) with respect to
any LIBOR Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a LIBOR Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"INTEREST PERIOD" means, with respect to any LIBOR Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in
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the calendar month that is one, two, three or six months thereafter, as the
Borrower may elect; PROVIDED, that (a) if any Interest Period would end on a day
other than 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 (b) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"LANDLORD LETTER" means a letter in the form of Exhibit G or any
other letter approved by the Administrative Agent.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"LIBOR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"LIBO RATE" means, with respect to any LIBOR Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Markets
Service (or on any successor or substitute page of such service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO RATE"
with respect to such LIBOR Borrowing for such Interest Period shall be the rate
at which dollar deposits of $5,000,000 and for a maturity comparable to such
Interest Period are offered by the principal London office of the Administrative
Agent (or, if the Administrative Agent at the time is not a commercial bank, any
commercial bank based in New York City selected by the Administrative Agent for
the purpose of quoting such rate, provided that such commercial bank has a
combined capital and surplus and undivided profits of not less than
$500,000,000) 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.
"LICENSES" has the meaning set forth in Section 3.05(c).
"LIEN" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any
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of the foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LOAN DOCUMENTS" means this Agreement, the Guarantee Agreement,
the Security Documents and the Indemnity and Contribution Agreement.
"LOAN PARTIES" means the Parent, the Borrower and the
Subsidiaries.
"LOANS" means the loans made or deemed made to the Borrower
pursuant to this Agreement.
"LUCENT" means Lucent Technologies Inc.
"LUCENT LENDER" means any Lender that is Lucent or an Affiliate of
Lucent.
"LUCENT PRODUCT" means any products or services purchased by the
Borrower pursuant to the Supply Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations, performance or
properties of the Parent, (b) the business, condition (financial or otherwise),
operations, performance or properties of the Borrower and the Subsidiaries,
taken as a whole, (c) the ability of the Parent, the Borrower or any other Loan
Party to perform any of its obligations under any Loan Document or (d) the
legality, validity, binding effect or enforceability of this Agreement or any
other Loan Document.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans),
or obligations in respect of one or more Hedging Agreements, of any one or more
of the Loan Parties in an aggregate principal amount exceeding $500,000. For
purposes of determining Material Indebtedness, the "principal amount" of the
obligations of a Loan Party in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that such Loan Party would be required to pay if such Hedging Agreement were
terminated at such time.
"MATURITY DATE" means June 30, 2006.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"NET PROCEEDS" means, with respect to any casualty or condemnation
event, (a) the cash proceeds received in respect of such event including (i) in
the case of a casualty, insurance proceeds, and (ii) in the case of a
condemnation or similar event, condemnation awards and similar payments, net of
(b) the sum of all reasonable fees and out-of-pocket expenses paid by the
Borrower and the Subsidiaries to third parties (other than Affiliates) in
connection with such event.
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"NET WORKING CAPITAL" means, at any date, (a) the consolidated
current assets of the Borrower and the Subsidiaries as of such date (excluding
cash and Permitted Investments) minus (b) the consolidated current liabilities
of the Borrower and the Subsidiaries as of such date (excluding current
liabilities in respect of Indebtedness), determined on a consolidated basis in
accordance with GAAP. Net Working Capital at any date may be a positive or
negative number. Net Working Capital increases when it becomes more positive or
less negative and decreases when it becomes less positive or more negative.
"NON-RECURRING ITEMS" means, for any period, (a) all non-recurring
items that do not involve any payment of cash by the Borrower or any Subsidiary
during such period or any future period and (b) non-recurring items set forth on
the Borrower's consolidated statement of operations for such period below the
operating income line in respect of (i) gains or losses on sales or dispositions
of assets outside the ordinary course of business, (ii) discontinued operations,
(iii) the effects of changes in accounting principles or methods, (iv)
write-downs on any investments of the Borrower or any Subsidiary in any Person
(other than the Borrower or a Subsidiary) and (v) any restructuring charges,
including the amount of any such restructuring charge to cover cash payouts to
laid-off employees of the Borrower or a Subsidiary.
"NON-RECURRING PARENT ITEMS" means, for any period, (a) all
non-recurring items that do not involve any payment of cash by the Parent, the
Borrower or any Subsidiary during such period or any future period and (b)
non-recurring items set forth on the Parent's consolidated statement of
operations for such period below the operating income line in respect of (i)
gains or losses on sales or dispositions of assets outside the ordinary course
of business, (ii) discontinued operations, (iii) the effects of changes in
accounting principles or methods, (iv) write-downs on any investments of the
Parent, the Borrower or any Subsidiary in any Person (other than the Parent, the
Borrower or a Subsidiary) and (v) any restructuring charges, including the
amount of any such restructuring charge to cover cash payouts to laid-off
employees of the Parent, the Borrower or a Subsidiary.
"OBLIGATIONS" means all obligations secured under the Loan
Documents.
"OTHER TAXES" means 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 under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PARENT" means Jato Communications Corp., a Delaware corporation.
"PARTIAL TERMINATION DATE" has the meaning set forth in the
Security Agreement (Parent).
"PAYMENT DATE" means September 30, 2002 and each Quarterly Date
thereafter ending on and including the Maturity Date.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"PENDING APPLICATIONS" has the meaning set forth in Section
3.05(c).
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"PERFECTION CERTIFICATE" means, with respect to the Borrower, a
certificate in the form of Exhibit A to the Security Agreement (Borrower), with
respect to any Subsidiary, a similar certificate in the form of the applicable
Security Document delivered by such Subsidiary and, with respect to the Parent,
a certificate in the form of Exhibit A to the Security Agreement (Parent) or any
other form approved by the Collateral Agent.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes, assessments, governmental
charges or similar claims that are not yet due or are being contested in
compliance with Section 5.05;
(b) statutory or common law Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other similar
Liens, arising in the ordinary course of business and securing obligations that
are not yet delinquent or are being contested in compliance with Section 5.05;
(c) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security;
(d) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory or regulatory obligations, surety and appeal
bonds, government contracts, performance and return-of-money bonds and other
obligations of a like nature, in each case in the ordinary course of business,
and a bank's unexercised right of set-off with respect to deposits made in the
ordinary course;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, municipal and zoning ordinances, rights-of-way
and similar encumbrances on or defects or other irregularities of title to real
property imposed by law or arising in the ordinary course of business that do
not secure any monetary obligations and do not materially detract from the value
of the affected property or interfere with the ordinary conduct of business of
the Parent, the Borrower or any Subsidiary;
(g) interests of lessees under leases or subleases granted by
the Parent, the Borrower or a Subsidiary as lessor that do not materially
interfere with the ordinary course of business of the Parent or the Borrower and
the Subsidiaries, taken as a whole;
(h) interests of licensees under licenses or sublicenses
granted by the Parent, the Borrower or a Subsidiary as licensor that do not
materially interfere with the ordinary course of business of the Parent or the
Borrower and the Subsidiaries, taken as a whole;
(i) Liens encumbering property or assets under construction
arising from progress or partial payments made by a customer of the Parent, the
Borrower or a Subsidiary relating to such property or assets;
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(j) any interest or title of a lessor in any property subject
to any lease otherwise not entered into in violation of the Loan Documents;
(k) any interest or title of a licensor in any property subject
to any license otherwise not entered into in violation of the Loan Documents;
(l) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods; and
(m) Liens in favor of a Securities Intermediary pursuant to
such Securities Intermediary's customary customer account agreement; provided
that any such Liens shall at no time secure any Indebtedness or obligations
other than customary fees and charges payable to such Securities Intermediary.
PROVIDED, that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED EXPENSES" means Capital Expenditures (excluding Capital
Expenditures financed by the incurrence of Capital Lease Obligations) for
equipment and other property to be used by the Borrower in the telecommunication
network related to Lucent Product in an aggregate amount not exceeding three
percent (3%) of the Purchase Price, plus any fees paid or payable to Lucent
pursuant to Section 2.10.
"PERMITTED INVESTMENTS" means:
(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 not more than 365 days after the date of acquisition thereof;
(b) commercial paper of a domestic issuer rated "A-1" or better
by S&P or "P-1" or better by Moody's maturing not more than 365 days after the
date of acquisition thereof;
(c) certificates of deposit, banker's acceptances and time
deposits maturing not more than 365 days after the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts issued
or offered by, an Eligible Institution;
(d) master note or deposit arrangements with securities of the
types described in paragraphs (a), (b) and (c) above;
(e) money market preferred stock of a corporation organized
under the laws of a jurisdiction within the United States of America rated "AA"
or better by S&P or "Aa" or better by Moody's; PROVIDED HOWEVER, that any such
debt security that is rated by both such rating agencies shall be rated "AA" or
better by S&P or Moody's;
(f) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and entered
into with an Eligible Institution; and
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(g) any fund investing exclusively in investments of the types
described in clauses (a) through (f) above.
"PERMITTED JURISDICTION" means a jurisdiction which is both a
Permitted Regulatory Jurisdiction and a Permitted UCC Jurisdiction.
"PERMITTED PREFERRED STOCK" means capital stock of the Borrower
(other than Disqualified Stock of the Borrower) of any class or classes (however
designated) that is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of the Borrower, over shares of capital stock of any other class of
the Borrower.
"PERMITTED REGULATORY JURISDICTION" means a jurisdiction in which
all applicable Governmental Authorities have (i) certified the Borrower as a
competitive local exchange carrier (as defined in the Telecommunications Act of
1996); (ii) approved all interconnection agreements to which the Borrower is a
party relating to such jurisdiction; and (iii) approved the Borrower's tariff or
tariffs with respect to such jurisdiction; PROVIDED, HOWEVER, that any such
jurisdiction shall be a Permitted Regulatory Jurisdiction only if the Agents and
the Lenders shall have received an opinion of legal counsel for the Borrower in
form and substance reasonably satisfactory to the Administrative Agent as to
such matters.
"PERMITTED UCC JURISDICTION" means (i) the jurisdictions in which
the Borrower indicates in the certificate delivered pursuant to clause (i) of
Section 4.01 that the Borrower maintains or anticipates maintaining equipment at
any time the Loans are to be outstanding and (ii) any other jurisdiction in
which the Borrower or a Subsidiary indicates in a certificate delivered pursuant
to clause (b) of Section 5.03 or (in the case of a Subsidiary) in connection
with the execution and delivery of any Security Document pursuant to Section
5.14 that the Borrower or such Subsidiary maintains or anticipates maintaining
equipment at any time the Loans are to be outstanding; PROVIDED that (x) any
such jurisdiction described in clause (i) or (ii) of this definition shall be a
Permitted UCC Jurisdiction only if the certificate most recently delivered by
the Borrower or such Subsidiary pursuant to clause (i) of Section 4.01 (in the
case of the Borrower), in connection with the execution and delivery of any
Security Documents required to be delivered pursuant to Section 5.14 (in the
case of a Subsidiary) or pursuant to clause (b) of Section 5.03 (in the case of
the Borrower or any Subsidiary) certifies to the effect required under clause
(ii) of clause (b) of Section 5.03 with respect in such jurisdiction and (y) in
the case of any such other jurisdiction described in clause (ii) of this
definition, such other jurisdiction shall be a Permitted UCC Jurisdiction only
if the Collateral Agent shall have received an opinion of legal counsel for the
Borrower in form and substance reasonably satisfactory to the Collateral Agent
as to the actions taken in order for the Borrower or such Subsidiary to be able
to make the certifications required under clause (ii) of clause (b) of Section
5.03 and the validity and effectiveness of such actions, including without
limitation, their ability to withstand any challenge in a bankruptcy proceeding
and the priority of security interest created by the Security Documents on
equipment to be located in such jurisdiction.
"PERSON" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
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"PLAN" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Parent or the Borrower or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"PLEDGE AGREEMENT (BORROWER)" means the Pledge Agreement between
the Borrower and the Collateral Agent, substantially in the form of Exhibit E.
"PLEDGE AGREEMENT (PARENT)" means the Pledge Agreement between
the Parent and the Collateral Agent, substantially in the form of Exhibit F.
"PREPAYMENT EVENT" means 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 Subsidiary after the
Effective Date; PROVIDED that (i) such events shall not constitute "Prepayment
Events" to the extent that the aggregate Net Proceeds from all such events are
less than $100,000 during any fiscal year of the Borrower and (ii) any such
event shall not constitute a "Prepayment Event" if the Borrower elects (by
notice to the Administrative Agent within five Business Days after receipt of
the Net Proceeds of such event) to apply the Net Proceeds of such event to
repair, restore or replace the affected property or asset or to reinvest such
Net Proceeds in Additional Assets as promptly as practicable, but in any event
within 90 days, after the receipt of the Net Proceeds of such event; PROVIDED
FURTHER that, if at the expiration of the 90-day period referred to in this
clause (ii) less than all the Net Proceeds of such event have been reinvested or
applied as provided therein, then a "Prepayment Event" shall be deemed to have
occurred at the expiration of such 90-day period with Net Proceeds equal to the
Net Proceeds that have not been so reinvested or applied.
"PRIME RATE" means the rate of interest per annum published from
time to time in the "Money Rates" column (or any successor column) of THE WALL
STREET JOURNAL as the prime rate or, if such rate shall cease to be so published
or is not available for any reason, the rate of interest publicly announced from
time to time by any "money center" bank based in New York City selected by the
Administrative Agent for the purpose of quoting such rate, provided such
commercial bank has a combined capital and surplus and undivided profits of not
less than $500,000,000. Each change in the Prime Rate shall be effective from
and including the date such change is published.
"PURCHASE PRICE" means amounts paid or payable for Lucent Product
pursuant to invoices delivered pursuant to the Supply Agreement.
"QUALIFYING BUSINESS" means the business of providing digital
connections to broadband networks and related telecommunications services and
products.
"QUARTERLY DATE" means the last day of each of March, June,
September and December.
"REGISTER" has the meaning set forth in Section 9.04.
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"RELATED PARTIES" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"REPAYMENT" means, in respect of any Indebtedness, the direct or
indirect repayment, prepayment, redemption, purchase, acquisition, defeasance,
retirement or other satisfaction of the principal of such Indebtedness, in whole
or in part, whether optional or mandatory. "REPAY" has a meaning correlative
thereto.
"REQUIRED LENDERS" means, at any time, Lenders having outstanding
Loans and Commitments representing more than 50% of the sum of the total
outstanding Loans and Commitments at such time; PROVIDED that at any time that
Lucent Lenders have outstanding Loans and Commitments representing more than 50%
of the sum of all outstanding Loans and Commitments at such time, "Required
Lenders" means each of (i) the Lucent Lenders at such time and (ii) other
Lenders holding more than 50% of the outstanding Loans and Commitments
(excluding those held by Lucent Lenders) at such time.
"RESTRICTED PAYMENT" means (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower or any Subsidiary (or until the
Partial Termination Date, the Parent), (b) any Repayment of any Subordinated
Indebtedness (or until the Partial Termination Date, any Repayment of any
Indebtedness of the Parent incurred pursuant to clause (vii) of Section 6.01) or
(c) any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancellation or termination of any shares of any class
of capital stock of the Borrower or any Subsidiary (or until the Partial
Termination Date, the Parent) or any option, warrant or other right to acquire
any such shares of capital stock of the Borrower or any Subsidiary ( or until
the Partial Termination Date, the Parent).
"S&P" means Standard & Poor's Ratings Services, a Division of the
McGraw-Hill Companies.
"SECURED PARTIES" means the Collateral Agent, the Administrative
Agent and the Lenders.
"SECURITIES ACCOUNT CONTROL AGREEMENT (BORROWER)" means the
Securities Account Control Agreement (Borrower) between the Borrower, the
Securities Intermediary (as defined therein) and the Collateral Agent,
substantially in the form of Exhibit G to the Securities Agreement (Borrower).
"SECURITIES ACCOUNT CONTROL AGREEMENT (PARENT)" means the
Securities Account Control Agreement (Parent) between the Parent, the Securities
Intermediary (as defined therein) and the Collateral Agent, substantially in the
form of Exhibit G to the Securities Agreement (Parent).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of
1934, as amended, and the rules of the Securities and Exchange Commission
thereunder as in effect from time to time.
"SECURITIES INTERMEDIARY" means any Person that is a party to a
Securities Account Control Agreement (Parent) or Securities Account Control
Agreement (Borrower) as the "Securities Intermediary" thereunder.
"SECURITY AGREEMENT (BORROWER)" means the Security Agreement
(Borrower) between the Borrower and the Collateral Agent, substantially in the
form of Exhibit D.
"SECURITY AGREEMENT (PARENT)" means the Security Agreement
(Parent) between the Parent and the Collateral, substantially in the form of
Exhibit H.
"SECURITY AGREEMENTS" means the Security Agreement (Borrower) and
the Security Agreement (Parent).
"SECURITY DOCUMENTS" means the Security Agreement (Borrower), the
Security Agreement (Parent), the Pledge Agreement (Borrower), the Pledge
Agreement (Parent), the Securities Account Control Agreement (Borrower) and the
Securities Account Control Agreement (Parent) and any other agreements delivered
pursuant to Section 5.14.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Borrower or
any Subsidiary included in Consolidated Indebtedness that is not Subordinated
Indebtedness.
"SENIOR OFFICER" means any senior officer of the Parent having
substantial responsibilities for the management and supervision of the business,
operations and affairs of the Parent, including, with respect to finance, sales,
customer care, carrier relations, marketing, operations, technology and product
development.
"SERIES B INVESTORS" means the holders of the Series B Preferred
Stock of the Parent.
"STATUTORY RESERVE RATE" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which any Lender subject to regulation
by the Board is subject with respect to the Adjusted LIBO Rate, for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Board). Such reserve percentages shall include those imposed pursuant to
such Regulation D. LIBOR Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
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"SUBORDINATED INDEBTEDNESS" of means any Indebtedness of the
Borrower owing to the Parent subordinated in right of payment to the payment of
the Obligations upon terms and conditions satisfactory to the Required Lenders.
"SUBSCRIBERS" means customers of the Borrower or any Subsidiary
obligated to pay cash for services of the Borrower or such Subsidiary at market
rates.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at
any date, any corporation, limited liability company, partnership, association
or other entity of which securities or other ownership interests representing
more than 50% of the equity or more than 50% of the ordinary voting power or, in
the case of a partnership, more than 50% of the general partnership interests
are, as of such date, owned, controlled or held by the parent or one or more
subsidiaries of the parent or by the parent and one or more subsidiaries of the
parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SUPPLY AGREEMENT" means the Supply Agreement dated as of February
12, 1999 between Lucent and the Parent.
"TAXES" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TOTAL CAPITALIZATION" means, as of any date of determination, the
sum of (a) Consolidated Indebtedness as of such date plus (b) the amount of paid
in capital of the Borrower on such date determined on a consolidated basis in
accordance with GAAP plus (c), if positive, the retained earnings of the
Borrower on such date determined on a consolidated basis in accordance with
GAAP.
"TOTAL PARENT CAPITALIZATION" means, as of any date of
determination, the sum of (a) Consolidated Parent Indebtedness as of such date
plus (b) the amount of paid in capital of the Parent on such date determined on
a consolidated basis in accordance with GAAP plus (c), if positive, the retained
earnings of the Parent on such date determined on a consolidated basis in
accordance with GAAP.
"TRANCHE 1 AVAILABILITY PERIOD" means the period from and
including the Effective Date to but excluding the earlier of (i) the Tranche 1
Availability Termination Date and (ii) the date of termination of the Tranche 1
Commitment.
"TRANCHE 1 AVAILABILITY TERMINATION DATE" means the earlier of (i)
the date [ * ] after the Effective Date and (ii) the [ * ].
"TRANCHE 1 COMMITMENT" means the Commitment with respect to
Tranche 1 Loans in an amount not to exceed $[ * ].
"TRANCHE 1 LOANS" means Loans made or deemed made pursuant to this
Agreement during the Tranche 1 Availability Period.
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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"TRANCHE 2 AVAILABILITY PERIOD" means the period from and
including the Tranche 1 Availability Termination Date to but excluding the
earlier of (i) the Tranche 2 Availability Termination Date and the (ii) date of
termination of the Tranche 2 Commitment.
"TRANCHE 2 AVAILABILITY TERMINATION DATE" means the earlier of
(i) the date [ * ] after the Effective Date and (ii) the [ * ], unless
extended pursuant to Section 2.06(a).
"TRANCHE 2 COMMITMENT" means the Commitment with respect to
Tranche 2 Loans in an amount not to exceed $[ * ].
"TRANCHE 2 LOANS" means Loans made or deemed made pursuant to this
Agreement during the Tranche 2 Availability Period.
"TRANSACTIONS" means the execution, delivery and performance by
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans and the use of the proceeds thereof.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Tranche 1 Loan") or by Type (e.g., a "LIBOR Loan") or by Class and
Type (e.g., a "Tranche 1 LIBOR Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Tranche 1 Borrowing") or by Type (e.g., a "LIBOR
Borrowing") or by Class and Type (e.g., a "Tranche 1 LIBOR Borrowing").
Section 1.03. TERMS GENERALLY. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without
limitation." The word "will" shall be construed to have the same meaning and
effect as the word "shall." Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed
to include such Person's successors and assigns, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts, contract rights,
licenses and intellectual property.
Section 1.04. ACCOUNTING TERMS; GAAP. 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
that, if the Parent notifies the Administrative Agent that the Parent requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Parent
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE LOANS
Section 2.01. COMMITMENTS. Subject to the terms and conditions
set forth herein, each Lender agrees to make Loans to the Borrower at any time
and from time to time during each Availability Period in an aggregate principal
amount not exceeding its Commitment at the time. Amounts repaid in respect of
Loans thereon may not be reborrowed.
Section 2.02. LOANS AND BORROWINGS.
(a) Each Loan shall be made as part of a Borrowing consisting
of Loans of the same Class and Type made by the Lenders ratably in accordance
with their respective Commitments. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; PROVIDED that the Commitments of the Lenders are several and no
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of LIBOR Loans or ABR Loans as the Borrower may request in accordance
herewith. Each Lender at its option may make any LIBOR Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan;
PROVIDED that any exercise of such option shall not affect the obligation of the
Borrower to repay such Loan thereon in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for any LIBOR
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less than $1,000,000. Borrowings of more than one
Type and Class may be outstanding at the same time; PROVIDED that there shall
not be more than six LIBOR Borrowings with respect to Tranche 1 Loans and six
LIBOR Borrowings with respect to Tranche 2 Loans outstanding at the same time.
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(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing as a LIBOR Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date for the Loans included in such
Borrowing.
Section 2.03. REQUESTS FOR BORROWINGS. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a LIBOR Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of the proposed Borrowing or (b) in
the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of the proposed Borrowing; PROVIDED that (i) the
Borrower may make only one request for a Borrowing in any single calendar month
(it being understood that all Borrowings made by the Borrower on the same date
shall be treated as a single request for a Borrowing for purposes of this
limitation) and (ii) if any Lucent Lender has a Commitment at the time of such
Borrowing and any portion of the proceeds of such Borrowing to be funded by such
Lucent Lender would be required to be funded by such Lucent Lender other than as
a credit against amounts owing to Lucent or an Affiliate of Lucent as provided
in Section 2.04, then the applicable Borrowing Request shall be made not later
than five Business Days before the date of the proposed Borrowing (in the case
of a LIBOR Borrowing) or three Business Days before the date of the proposed
Borrowing (in the case of an ABR Borrowing). Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of such Borrowing and a reasonably
detailed description of the use of the proceeds therefrom (and each
written Borrowing Request shall attach copies of all invoices to be paid
with such proceeds);
(ii the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a LIBOR Borrowing or an ABR
Borrowing;
(iv) in the case of a LIBOR Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the account or accounts to which
funds (if any) are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested LIBOR Borrowing, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration. Promptly following
receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
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Section 2.04. FUNDING OF BORROWINGS.
(a) Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
designated by the Borrower in the applicable Borrowing Request. Notwithstanding
the foregoing, if the proceeds of any Borrowing are to be used to make any
payment to or for the account of Lucent or any Affiliate thereof (i) if any
Lucent Lender has a Commitment, then such Lucent Lender may make its Loan by
crediting the amount thereof against the payment obligations to Lucent or any
such Affiliate and shall be deemed to have made a Loan in the amount of such
credit and (ii) the Administrative Agent will make the Loans of the other
Lenders available to the Borrower by promptly crediting the amounts so received
from such other Lenders, in immediately available funds, to an account of Lucent
maintained with the Administrative Agent for such purpose, to the extent of the
proceeds of such Loans designated to be used to make payments to Lucent or any
of its Affiliates (after giving effect to any credits pursuant to clause (i)
above) and the balance, if any, of such proceeds shall be made available to the
Borrower as provided in the preceding sentence.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans of the same Class. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute
such Lender's Loan included in such Borrowing. Nothing in this Section 2.04(b)
shall prejudice the Borrower's rights against any such defaulting Lender.
Section 2.05. INTEREST ELECTIONS.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a LIBOR Borrowing, shall
have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a LIBOR Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans
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comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.03 if the Borrower
were requesting a Borrowing of the Type resulting from such election to be made
on the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a LIBOR Borrowing
or an ABR Borrowing; and
(iv) if the resulting Borrowing is a LIBOR Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period."
If any such Interest Election Request requests a LIBOR Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and of
such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a LIBOR Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing, then, so long as an Event of Default is
continuing (i) no outstanding Borrowing may be converted to or continued as a
LIBOR Borrowing at the end of the then current Interest Period and (ii) unless
repaid, each LIBOR Borrowing shall be converted to an ABR Borrowing at the end
of the Interest Period applicable thereto.
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(f) A Borrowing of any Class may not be converted to or
continued as a LIBOR Borrowing if after giving effect thereto (i) the Interest
Period therefor would commence before and end after a date on which any
principal of the Loans of such Class is scheduled to be repaid and (ii) the sum
of the aggregate principal amount of outstanding LIBOR Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
Section 2.06. TERMINATION AND REDUCTION OF COMMITMENTS.
(a) Unless previously terminated, the Commitments with respect
to Tranche 1 Loans shall terminate on the Tranche 1 Availability Termination
Date and the Commitments with respect to Tranche 2 Loans shall terminate on the
Tranche 2 Availability Termination Date.
(b) On the date of each Loan made by any Lender such Lender's
Commitment shall be reduced by an amount equal to such Loan.
(c) If a prepayment would be required pursuant to paragraph (b)
or (c) of Section 2.09, all Commitments then in effect shall be reduced ratably
by an aggregate amount equal to the excess, if any, of the amount of the
required prepayment over the aggregate principal amount of Loans outstanding
immediately prior to giving effect to such prepayment.
(d) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; PROVIDED that each reduction of the Commitments
pursuant to this paragraph (d) shall be in an amount that is an integral
multiple of $1,000,000 and not less than $1,000,000.
(e) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (d) of this
Section at least one Business Day prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any such notice, the Administrative
Agent shall advise the Lenders of the contents thereof. Each notice delivered
by the Borrower pursuant to this Section shall be irrevocable. Any termination
or reduction of the Commitments shall be permanent. Each reduction of the
Commitments pursuant to paragraph (d) of this Section shall be made ratably
among the Lenders in accordance with their respective Commitments; PROVIDED that
the Borrower may, in its discretion, reduce the Commitments of Lucent Lenders
pursuant to such paragraph (d) without reducing the Commitments of other
Lenders.
Section 2.07. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Loan of such Lender as provided in Section 2.08.
(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.
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(c) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and 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 Administrative 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 Administrative 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 of any Class made by it
be evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender such a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) 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. AMORTIZATION OF LOANS.
(a) Subject to adjustment pursuant to paragraph (c) of this
Section, the Borrower shall repay Borrowings on each of the first four
Payment Dates in an aggregate amount equal to [ * ] of the sum of all Loans
made or deemed made hereunder (including amounts previously repaid or
prepaid), on each of the second four Payment Dates in an aggregate amount
equal to [ * ] of the sum of all Loans made or deemed made hereunder
(including amounts previously repaid or prepaid) and on each of the remaining
Payment Dates in an aggregate amount equal to [ * ] of the sum of all Loans
made or deemed made hereunder (including amounts previously repaid or
prepaid).
(b) To the extent not previously paid, all Loans of each Class
shall be due and payable on the Maturity Date with respect to Loans of such
Class.
(c) Any prepayment of a Borrowing of any Class shall be applied
to reduce ratably the subsequent scheduled repayments of the Borrowings of such
Class to be made pursuant to this Section; PROVIDED that any prepayment of a
Borrowing of any Class that is made pursuant to Section 2.09(a) shall be applied
to reduce the subsequent scheduled repayments of the Borrowings of such Class to
be made pursuant to this Section in reverse chronological order or, at the
election of any Lender with respect to any portion of such prepayment payable to
such Lender, to reduce ratably the subsequent scheduled repayments of the
Borrowings of such Class to be made pursuant to this Section.
(d) Prior to any repayment of any Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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notify the Administrative Agent by telephone (confirmed by telecopy) of such
selection not later than 11:00 a.m., New York City time, three Business Days
before the scheduled date of such repayment; PROVIDED that each repayment of
Borrowings of any Class shall be applied to repay any outstanding ABR Borrowings
of such Class before any other Borrowings of such Class. If the Borrower fails
to make a timely selection of the Borrowing or Borrowings to be repaid, such
repayment shall be applied, first, to repay any outstanding ABR Borrowings of
the applicable Class and, second, to other Borrowings of the applicable Class in
the order of the remaining duration of their respective Interest Periods (the
Borrowing with the shortest remaining Interest Period to be repaid first). Each
repayment of a Borrowing shall be applied, ratably to the Loans included in the
repaid Borrowing. Repayments of Borrowings shall be accompanied by the payment
of accrued interest on the amount thereof.
Section 2.09. PREPAYMENT OF LOANS.
(a) The Borrower shall have the right at any time and from time
to time to prepay any Borrowing in whole or in part subject to the requirements
of this Section without penalty or premium (except as provided in Section 2.14
or 2.15).
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, the Borrower shall, within six Business Days after such Net
Proceeds are received, prepay Borrowings in an aggregate amount equal to such
Net Proceeds.
(c) Following the end of each fiscal year of the Borrower,
commencing with the fiscal year ending on or after the Effective Date, for
which there is any Excess Cash Flow, the Borrower shall prepay Borrowings in
an aggregate amount equal to [ * ]. Each prepayment pursuant to this
paragraph shall be made on or before the date on which financial statements
are delivered pursuant to Section 5.01 with respect to the fiscal year for
which Excess Cash Flow is being calculated (and in any event within 90 days
after the end of such fiscal year).
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (e) of this Section; PROVIDED that each prepayment of Borrowings of
any Class shall be applied to prepay ABR Borrowings of such Class before any
other Borrowings of such Class. If optional or mandatory prepayment of
Borrowings made at a time when Borrowings of more than one Class are
outstanding, the Borrower shall select Borrowings to be prepaid so that the
aggregate amount of such prepayment is allocated among the Classes pro rata
based on the aggregate principal amount of outstanding Borrowings of each such
Class.
(e) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a LIBOR Borrowing, not later than 1:00 p.m., New York City time,
three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment. Promptly
following receipt of any such notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that is an integral multiple of $100,000 and not less than
$1,000,000, except as necessary to apply fully the required amount of a
mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to
the Loans included in the prepaid Borrowing. Prepayments of Borrowings shall be
accompanied by the payment of accrued interest on the amount prepaid.
Section 2.10. FEES.
(a) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender (i) a commitment fee, which shall accrue (at
the rate per annum separately agreed) on the [ * ] of such Lender during
the period from and including the Effective Date to but excluding the date on
which the Tranche 1 Commitments terminate and (ii) a commitment fee, which
shall accrue (at a rate per annum separately agreed) on the [ * ] of such
Lender during the period from and including the [ * ] to but excluding the
date on which the [ * ] terminate. Accrued commitment fees shall be
payable in arrears on each Interest Payment Date and, in the case of
commitment fees in respect of [ * ], on the date on which the [ * ]
terminate and, in the case of commitment fees in respect of the [ * ], on
the date on which the [ * ] terminate, commencing on the first such date to
occur after the Effective Date. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(b) The Borrower agrees to pay to Lucent, for its own account,
fees in the [ * ].
(c) The Borrower agrees to pay to the Administrative Agent (if
other than Lucent) and the Collateral Agent, for its own account, fees in the
[ * ].
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, (i) to the applicable Agent, (ii) to Lucent, in
the case of fees payable to it, or (iii) to the Administrative Agent, in the
case of commitment fees, for distribution to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
Section 2.11. INTEREST.
(a) The Loans comprising each ABR Borrowing shall bear interest
at the Alternate Base Rate plus the Applicable Rate.
(b) The Loans comprising each LIBOR Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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(c) Notwithstanding the foregoing if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, such overdue amount shall bear interest, after as well as
before judgment, at a rate per annum equal to [ * ] plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) All accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan; PROVIDED that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable [ * ],
(ii) in the event of any repayment or prepayment of any Loan, accrued interest
on the principal amount of such Loan repaid or prepaid shall be payable on the
date of such repayment or prepayment, or (iii) in the event of any conversion of
any Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate
or Adjusted LIBO Rate shall be determined in accordance with this Agreement by
the Administrative Agent, and such determination shall be conclusive absent
manifest error.
Section 2.12. ALTERNATE RATE OF INTEREST. If prior to the
commencement of any Interest Period for a LIBOR Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by a majority in
interest of the Lenders participating in such Borrowing that the Adjusted LIBO
Rate for such Interest Period will not adequately and fairly reflect the cost to
such Lenders of making or maintaining their Loans included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a LIBOR Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a LIBOR Borrowing, such Borrowing shall
be made as an ABR Borrowing.
Section 2.13. INCREASED COSTS.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit
* INDICATES CONFIDENTIAL TREATMENT REQUESTED
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extended by, any Lender (except any such reserve requirement reflected
in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or LIBOR Loans made by such
Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation
to make any such Loan) or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on such Lender's capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case
may be, as specified in paragraph (a) or (b) of this Section and the basis
therefor shall be delivered to the Borrower by the applicable Lender (with a
copy to the Administrative Agent) and shall be conclusive absent manifest error
The Borrower shall pay such Lender the amount shown as due on any such
certificate within 30 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; PROVIDED that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than 270 days prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's intention to claim compensation
therefor; PROVIDED FURTHER that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the 270-day period referred
to above shall be extended to include the period of retroactive effect thereof.
Section 2.14. BREAK FUNDING PAYMENTS; PREPAYMENT FEES. In the
event of (i) the payment of any principal of any LIBOR Loan other than on the
last day of an Interest Period applicable thereto (including as a result of an
Event of Default), (ii) the conversion of any LIBOR Loan other than on the last
day of the Interest Period applicable thereto, (iii) the failure to borrow,
convert, continue or prepay any Loan on the date specified in any notice
delivered pursuant hereto, or (iv) the assignment of any LIBOR Loan other than
on the last day of the Interest Period applicable thereto as a result of a
request by the Borrower pursuant to Section
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2.17, then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a LIBOR Loan,
such loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this paragraph shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
Section 2.15. TAXES.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes;
PROVIDED that if the Borrower shall be required to deduct any Indemnified Taxes
or Other Taxes from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative
Agent or Lender receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full amount
of any Indemnified Taxes or Other Taxes paid by the Administrative Agent or such
Lender on or with respect to any payment by or on account of any obligation of
the Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment
delivered to the Borrower by a Lender, or by the Administrative Agent on its own
behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
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(e) Each Foreign Lender shall deliver to the Borrower (with a
copy to the Administrative Agent) two copies of either United States Internal
Revenue Service Form 1001 or Form 4224, or, in the case of a Foreign Lender
claiming exemption from U.S. Federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a Form W-8,
or any subsequent versions thereof or successors thereto (and, if such Foreign
Lender delivers a Form W-8, a certificate representing that such Foreign Lender
is not a bank for purposes of Section 881(c) of the Code, is not a ten percent
(10%) shareholder of the Borrower (within the meaning of Section 871(h)(3)(B) of
the Code) and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Foreign Lender claiming complete exemption from, or
reduced rate of, U.S. Federal withholding tax on payments by the Borrower under
this Agreement or any other Loan Document. Such forms shall be delivered by
each Foreign Lender on or before the date it becomes a party to this Agreement
or designates a new lending office. In addition, each Foreign Lender shall
deliver such forms promptly upon the obsolescence, expiration or invalidity of
any form previously delivered by such Foreign Lender. Notwithstanding any other
provision of this Section 2.15, a Foreign Lender shall not be required to
deliver any form pursuant to this Section 2.15 that such Foreign Lender is not
legally able to deliver.
(f) If the Administrative Agent or a Lender determines, in its
sole discretion, that it has received a refund of any Taxes as to which it has
been indemnified by the Borrower pursuant to this Section 2.15, it shall pay
over such refund to the Borrower (but only to the extent of indemnity payments
made by the Borrower under this Section 2.15 with respect to the Taxes giving
rise to such refund), net of all reasonable out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); PROVIDED, HOWEVER, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event
the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. Nothing contained in this Section 2.15 shall require
the Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its Taxes which it deems confidential) to the
Borrower or any other Person.
Section 2.16. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS.
(a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest or
fees, or of amounts payable under Sections 2.13, 2.14 or 2.15, or otherwise)
prior to 12:00 noon, New York City time, on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes of
calculating interest thereon. All such payments shall be made to the
Administrative Agent at The Chase Manhattan Bank, New York, New York, ABA no.
021000021, account no. 9101449099, phone no. (212) 552-2222 (or such other
account as the Administrative Agent shall from time to time specify by notice),
except that payments pursuant to Sections 2.10(b), 2.10(c), 2.13, 2.14, 2.15 and
9.03 shall be made directly to the Persons entitled thereto and payments
pursuant to
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other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fe