Exhibit 99.2
EXECUTION COPY
AMENDMENT AND RESTATEMENT AGREEMENT dated as of August 23,
2002 (this "Amendment Agreement"), among LEVEL 3 COMMUNICATIONS,
INC. ("Level 3"), LEVEL 3 COMMUNICATIONS, LLC, LEVEL 3
INTERNATIONAL SERVICES, INC., LEVEL 3 INTERNATIONAL, INC., BTE
EQUIPMENT, LLC, ELDORADO FUNDING, LLC, the LENDERS party hereto,
and JPMORGAN CHASE BANK, as Administrative Agent and Collateral
Agent (in such capacities, the "Agent"), under the Credit
Agreement dated as of September 30, 1999, among Level 3, the
borrowers and the lenders referred to therein and the Agent, as
in effect on the date hereof (the "Credit Agreement").
WHEREAS, Level 3 and the Borrowers have requested, and the Required Lenders
and the Administrative Agent have agreed, upon the terms and subject to the
conditions set forth herein, that the Credit Agreement be amended and restated
as provided herein;
NOW, THEREFORE, Level 3, each Borrower, each of the undersigned Lenders and
the Agent hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Restated Credit Agreement
referred to below.
SECTION 2. Amendment Effectiveness Date. (a) The transactions provided for
in Sections 3 and 4 hereof shall be consummated at a closing to be held on the
Amendment Effectiveness Date at the offices of Cravath, Swaine & Moore, or at
such other time and place as the parties hereto shall agree upon.
(b) The "Amendment Effectiveness Date" shall be the first date as of which
all the conditions set forth or referred to in Section 5 hereof shall have been
satisfied and shall occur on August 23, 2002, or such later date as the Agent
and Level 3 shall mutually agree, but shall in no event be a date later than
August 31, 2002. This Amendment Agreement shall terminate at 5:00 p.m., New York
City time, on August 31, 2002, if the Amendment Effectiveness Date shall not
have occurred at or prior to such time.
SECTION 3. Amendment and Restatement of the Credit Agreement. Effective as
of the Amendment Effectiveness Date, the Credit Agreement and the Schedules
thereto are amended and restated to read in their entirety as set forth in
Exhibit A hereto (the "Restated
Credit Agreement"), and the Agent is hereby directed to enter into such Loan
Documents and to take such other actions as may be required to give effect to
the transactions contemplated hereby and by the Restated Credit Agreement. From
and after the effectiveness of such amendment and restatement, the terms
"Agreement", "this Agreement", "herein", "hereinafter", "hereto", "hereof" and
words of similar import, as used in the Restated Credit Agreement, shall, unless
the context otherwise requires, refer to the Credit Agreement as amended and
restated in the form of the Restated Credit Agreement, and the term "Credit
Agreement", as used in the Loan Documents, shall mean the Restated Credit
Agreement. It is understood and agreed that the effectiveness of neither this
Agreement nor the Restated Credit Agreement will affect the effectiveness or
validity of any waiver or consent granted under the Loan Documents in writing by
the requisite Lenders prior to the Amendment Effectiveness Date, except as
expressly set forth herein or in the Restated Credit Agreement.
SECTION 4. Waiver and Acknowledgment. (a) The Lenders acknowledge that (i)
PricewaterhouseCoopers LLP ("PWC") is thoroughly familiar with the Loan
Documents, is experienced in determining compliance with loan documents, has
conducted an extensive investigation of the business, operations and financial
affairs of Level 3 on behalf of the Lenders and has reported to the Lenders on
the results of such investigation, and (ii) the Lenders and PWC have received
copies of each of the filings by Level 3 with the Securities and Exchange
Commission set forth on Schedule 1 hereto;
(b) Without any acknowledgment by Level 3 or any Borrower of the existence
of any Default or Event of Default, effective as of the Amendment Effectiveness
Date, the Lenders hereby waive (i) Defaults and Events of Default that may have
existed prior to the Amendment Effectiveness Date as a result of facts or
circumstances accurately disclosed in all material respects, either orally or in
writing, (including electronic writings) by Level 3 to either PWC or the Lenders
prior to the date hereof and (ii) any other existing or claimed Defaults or
Events of Default known to PWC, the Lenders, the Agent or their counsel as of
the date hereof; provided that no Default or Event of Default under paragraph
(g) of Article VII of the Credit Agreement is hereby waived to the extent such
Default or Event of Default is solely the result of Defaults or Events of
Default not otherwise waived under clauses (i) and (ii) of this Section 4(b).
(c) The Lenders acknowledge that Level 3 intends to cause certain of its
Restricted Subsidiaries to enter into a transaction (the "GmbH Shares
Transaction"), pursuant to which, among other things, (i) an individual will
form a new limited liability company ("LLC") and own the sole membership
interest therein; (ii) LLC will constitute a "Subsidiary" under the Credit
Agreement, because its financial statements will be consolidated with those of
Level 3, and will be designated as an Unrestricted Subsidiary pursuant to
Section 6.13 of the Credit Agreement; (iii) Level 3 Communications BV
(Netherlands) ("BV") will loan i1, 400 to LLC
(the "Loan") and LLC will use the proceeds thereof to purchase shares of
preferred stock (the "GmbH Shares") of Level 3 Communications GmbH (Germany)
("GmbH") representing less than 1% of the Equity Interest in GmbH; (iv) LLC will
pledge the GmbH Shares to BV to secure the Loan; (v) LLC, as the holder of the
GmbH Shares, will be entitled to receive cash dividends with respect to the GmbH
Shares at a rate of between 8% and 10% per annum and the GmbH Shares will be
subject to mandatory redemption on the tenth anniversary of issuance at a price
equal to its stated value plus accrued dividends; (vi) the proceeds of dividends
received by LLC with respect to the GmbH Shares will be paid by LLC to BV as
interest on the Loan; and (vii) the individual owning the sole membership
interest in LLC will grant BV an option, exercisable at any time, to purchase
such membership interest for $1. All agreements governing the terms of the GmbH
Shares shall be reasonably satisfactory to the Administrative Agent and the GmbH
Shares Transaction shall be consummated on terms consistent with those set forth
in this clause (c) and otherwise in a manner reasonably satisfactory to the
Administrative Agent.
(d) The Lenders hereby waive, only to the extent that the GmbH Shares
Transaction is consummated on terms consistent with those set forth in
clause (c) of this Section 4, the requirements of the following provisions of
the Credit Agreement with respect to (i) the requirements of Section
6.13(a)(i)(y) of the Credit Agreement, solely with respect to the ownership by
LLC of the GmbH Shares; (ii) the requirements of Section 6.01(b) and 6.06, in
each case solely with respect to the issuance and sale by GmbH of the GmbH
Shares to LLC, and (iii) the requirements of Section 6.08(a), solely with
respect to the payment of dividends on, and redemption of, the GmbH Shares.
(e) Effective as of the Amendment Effectiveness Date, each Lender party
hereto acknowledges that it is not aware of any Default or Event of Default
existing after giving effect to Sections 3 and 4 of this Amendment Agreement.
SECTION 5. Conditions Precedent to Effectiveness. The consummation of the
transactions and other effects set forth in Sections 3 and 4 of this Amendment
Agreement shall be subject to the satisfaction of the following conditions
precedent:
(a) The Administrative Agent (or its counsel) shall have
received from Level 3, each Borrower and Lenders constituting the
Required Lenders either (i) counterparts of this Agreement signed
on behalf of such party or (ii) written evidence satisfactory to
the Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed
counterparts of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the
Lenders and dated the Amendment
Effectiveness Date) of Willkie Farr & Gallagher, special counsel
for Level 3 and the Borrowers, substantially in the form of
Exhibit B. Level 3 and the Borrowers hereby request such counsel
to deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its
counsel may reasonably request relating to the organization,
existence and good standing of each Loan Party and Finance, the
authorization of the Transactions, the other transactions
contemplated hereby and any other legal matters relating to the
Loan Parties, the Loan Documents, the Transactions or the other
transactions contemplated hereby, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Amendment Effectiveness Date and signed by
the President, a Vice President or a Financial Officer of Level
3, representing and warranting that, to the best of his
knowledge, after giving effect Sections 3 and 4 of this Amendment
Agreement, (i) the representations and warranties of each Loan
Party set forth in the Loan Documents shall be true and correct
as of the Amendment Effectiveness Date, except to the extent that
any representation or warranty relates to any earlier date (in
which case such representation or warranty is correct as of such
earlier date); and (ii) as of the Amendment Effectiveness Date,
no Default shall have occurred and be continuing.
(e) The Administrative Agent shall have received, or
contemporaneously therewith shall receive, all fees and other
amounts due and payable on or prior to the Amendment
Effectiveness Date in connection with this Amendment Agreement
and the transactions contemplated hereby, including, without
limitation:
(i) for the account of each applicable payee, all
commitment fees under Section 2.13 of the Credit Agreement
accrued but unpaid as of the Amendment Effectiveness Date;
(ii) for the account of each Lender that has delivered
(including by telecopy) an executed counterpart of this
Amendment Agreement to the Administrative Agent or counsel
to the Administrative Agent on or prior to the Amendment
Effectiveness Date an amendment fee equal to 0.25% of the
aggregate amount of such Lender's unused Commitments,
Revolving Exposure and outstanding Term Loans on the date of
this Amendment Agreement after giving effect to the
reductions of Commitments effected pursuant to the Restated
Credit Agreement; and
(iii) for the account of each applicable payee, to the
extent invoiced, reimbursement or payment of all fees and
out-of-pocket expenses (including, without limitation, fees,
charges and disbursements of counsel), required to be
reimbursed or paid by any Loan Party hereunder or under any
other Loan Document or in connection herewith or therewith.
(f) The Transactions and the other transactions contemplated hereby
shall not violate any applicable law, statute, rule or regulation or
conflict with, or result in a default under, any material agreement of
Level 3, any Borrower or any of their subsidiaries. All consents and
approvals necessary or advisable to be obtained from any Governmental
Authority or other Person in connection with the Transactions shall have
been obtained.
(g) A Reaffirmation Agreement substantially in form of Exhibit C
hereto shall have been delivered by each Loan Party (and the Required
Lenders hereby approve the amendments to the Loan Documents contemplated
thereby and instruct the Agent to execute the Reaffirmation Agreement).
(h) The Collateral and Guarantee Requirement shall be satisfied, and
in connection therewith the Administrative Agent shall have received a
completed Perfection Certificate with respect to the Loan Parties dated the
Amendment Effectiveness Date and signed by an executive officer or
Financial Officer of Level 3, together with all attachments contemplated
thereby.
(i) Each of the following conditions regarding Finance shall be
satisfied:
(A) The Collateral Agent shall have received Finance
Collateral Control Agreements in respect of one or more deposit
and securities accounts maintained by Finance with, or Money
Market Funds owned by Finance and held by, not more than four
financial institutions satisfactory to the Collateral Agent; the
aggregate amount of the cash and Money Market Funds held in such
accounts or represented by such funds shall be not less than
$400,000,000 as of the Amendment Effectiveness Date; each such
Finance Collateral Control Agreement with respect to deposit or
securities accounts shall be in substantially the form attached
as Exhibit A to the Finance Guarantee and Security Agreement or
in such other form as may be reasonably agreed to by the
Collateral Agent, and each such Finance Collateral Control
Agreement with respect to Money Market Funds shall be in
substantially the form attached as Exhibit B to the Finance
Guarantee and Security Agreement or in such other form as may be
reasonably agreed to by the Collateral Agent, and in each case
shall have been executed by each of Finance, the applicable
financial institution or Money Market Fund, as the case may be,
and the Collateral Agent; and the Collateral Agent shall have
received a certificate, dated the Amendment Effectiveness Date
and signed by the President, a Vice President or a Financial
Officer of Level 3, representing and warranting that all the cash
and Money Market Funds so deposited or held by Finance are the
property of Finance and were not contributed, advanced or
otherwise transferred to Finance by any Person for the purpose of
making such deposit or investment.
(B) Finance shall have entered into the Finance Guarantee and Security
Agreement in substantially the form attached as Exhibit D hereto
(collectively with the Finance Collateral Control Agreements referred to
above, the "Finance Documents").
(j) The Administrative Agent shall have received an unaudited balance
sheet of BTE as of June 30, 2002, certified by a Financial Officer and
demonstrating compliance as of such date with Section 6.12 and Section
6.14(h), in each case as in effect after giving effect Sections 3 and 4 of
this Amendment Agreement.
(k) The Master Lease Agreement in the form attached as Exhibit E
hereto (which shall be in form and substance reasonably satisfactory to the
Administrative Agent) shall have been delivered by each Person party
thereto.
The Administrative Agent shall notify Level 3 and the Lenders of the Amendment
Effectiveness Date and such notice shall be conclusive and binding.
SECTION 6. Agreement of Level 3. To induce the other parties hereto to
enter into this Amendment and Restatement Agreement, Level 3 hereby agrees that
it shall satisfy the Collateral and Guarantee Requirement with respect to
Software Spectrum Bermuda Ltd. and each other first-tier Foreign Subsidiary of
CorpSoft, Inc. within 60 days following the Amendment Effectiveness Date. Level
3 and the other parties hereto also agree that the failure of Level 3 to satisfy
such Collateral and Guarantee Requirement shall constitute an immediate Event of
Default.
SECTION 7. Representations and Warranties. Each of Level 3 and each of the
Borrowers represents and warrants to the Lenders that, after giving effect
Sections 3 and 4 of this Amendment Agreement, (a) the representations and
warranties of each Loan Party set forth in the Loan Documents shall be true and
correct as of the Amendment Effectiveness Date, except to the extent that any
representation or warranty relates to any earlier date (in which
case such representation or warranty shall be correct as of such earlier date);
and (b) as of the Amendment Effectiveness Date, no Default shall have occurred
and be continuing
SECTION 8. Effectiveness; Counterparts. This Amendment Agreement shall
become effective when the Administrative Agent (or its counsel) shall have
received from Level 3, each Borrower and Lenders constituting the Required
Lenders either (i) counterparts of this Agreement signed on behalf of such party
or (ii) written evidence satisfactory to the Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has
signed counterparts of this Agreement. This Amendment Agreement may not be
amended nor may any provision hereof be waived except pursuant to a writing
signed by Level 3, each of the Borrowers, the Agent and Lenders constituting the
Required Lenders. This Amendment Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment
Agreement.
SECTION 9. No Novation. This Amendment Agreement shall not extinguish the
Loans outstanding under the Credit Agreement. Nothing herein contained shall be
construed as a substitution or novation of the Loans outstanding under the
Credit Agreement, which shall remain outstanding as modified hereby.
SECTION 10. Notices. All notices hereunder shall be given in accordance
with the provisions of Section 9.01 of the Restated Credit Agreement.
SECTION 11. Applicable Law; Waiver of Jury Trial. (A) THIS AMENDMENT
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY AGREES AS SET FORTH IN SECTION 9.10 OF THE
RESTATED CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their respective authorized officers as of the day and
year first above written.
LEVEL 3 COMMUNICATIONS, INC.,
LEVEL 3 INTERNATIONAL SERVICES, INC.,
LEVEL 3 INTERNATIONAL, INC.,
LEVEL 3 COMMUNICATIONS, LLC,
BTE EQUIPMENT, LLC,
ELDORADO FUNDING, LLC,
by
/s/ Neil J. Eckstein
Name: Neil J. Eckstein
Title: Vice President
JPMORGAN CHASE BANK, individually
and as Issuing Bank, Swingline Lender,
Administrative Agent and Collateral Agent,
by
/s/ Mary Ellen Egbert
Name: Mary Ellen Egbert
Title: Managing Director
Signature page to Level 3 Amendment and
Restatement Agreement
LENDER:
by
/*/
Name:
Title:
/*/ This agreement has been executed by Lenders constituting the Required
Lenders as defined in the Credit Agreement.
EXHIBITS AND SCHEDULES
Schedule 1 -- SEC Filings
Exhibit A -- Form of Restated Credit Agreement and Schedules
Exhibit B -- Form of Opinion of Willkie Farr & Gallagher
Exhibit C -- Form of Reaffirmation Agreement
Exhibit D -- Form of Finance Guarantee and Security Agreement
Exhibit E -- Amended Master Lease Agreement
EXECUTION COPY
EXHIBIT A
TO THE AMENDMENT AND RESTATEMENT AGREEMENT
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of
September 30, 1999
among
LEVEL 3 COMMUNICATIONS, INC.
The Borrowers named herein
The Lenders Party hereto
and
JPMORGAN CHASE BANK,
as Agent
___________________________
J.P. MORGAN SECURITIES INC.,
as Sole Book Manager and Lead Arranger
___________________________
J.P. MORGAN SECURITIES INC., GOLDMAN SACHS
CREDIT PARTNERS L.P.
AND SALOMON SMITH BARNEY INC.,
as Syndication Agents
TABLE OF CONTENTS
Page
ARTICLE I
SECTION 1.01. Defined Terms.............................................................................7
SECTION 1.02. Classification of Loans and Borrowings...................................................42
SECTION 1.03. Terms Generally..........................................................................42
SECTION 1.04. Accounting Terms; GAAP...................................................................42
ARTICLE II
SECTION 2.01. Commitments..............................................................................43
SECTION 2.02. Loans and Borrowings.....................................................................43
SECTION 2.03. Requests for Borrowings..................................................................44
SECTION 2.04. Swingline Loans..........................................................................45
SECTION 2.05. Letters of Credit........................................................................46
SECTION 2.06. Funding of Borrowings....................................................................50
SECTION 2.07. Interest Elections.......................................................................51
SECTION 2.08. Termination and Reduction of Commitments.................................................52
SECTION 2.09. Repayment of Loans; Evidence of Debt.....................................................53
SECTION 2.10. Automatic Revolving Commitment Reductions; Amortization of Term Loans....................54
SECTION 2.11. Prepayment of Loans......................................................................56
SECTION 2.12. Tranche B Facility and Tranche C Facility Prepayment Fees................................58
SECTION 2.13. Fees.....................................................................................59
SECTION 2.14. Interest.................................................................................60
SECTION 2.15. Alternate Rate of Interest...............................................................61
SECTION 2.16. Increased Costs..........................................................................61
SECTION 2.17. Break Funding Payments...................................................................63
SECTION 2.18. Taxes....................................................................................63
SECTION 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs..............................64
SECTION 2.20. Mitigation Obligations; Replacement of Lenders...........................................66
SECTION 2.21. Incremental Facility.....................................................................67
ARTICLE III
SECTION 3.01. Organization; Powers.....................................................................68
SECTION 3.02. Authorization; Enforceability............................................................68
SECTION 3.03. Governmental Approvals; No Conflicts.....................................................69
SECTION 3.04. Financial Condition; No Material Adverse Change..........................................69
SECTION 3.05. Properties...............................................................................70
SECTION 3.06. Litigation and Environmental Matters.....................................................70
SECTION 3.07. Compliance with Laws and Agreements......................................................70
SECTION 3.08. Investment and Holding Company Status....................................................71
SECTION 3.09. Taxes....................................................................................71
SECTION 3.10. ERISA....................................................................................71
SECTION 3.11. Disclosure...............................................................................71
SECTION 3.12. Subsidiaries.............................................................................72
SECTION 3.13. Insurance................................................................................72
SECTION 3.14. Labor Matters............................................................................72
SECTION 3.15. Intellectual Property....................................................................72
SECTION 3.16. [omitted]................................................................................72
SECTION 3.17. Security Interests.......................................................................72
SECTION 3.18. Absence of Non-Permitted Obligations.....................................................73
SECTION 3.19. FCC Compliance...........................................................................74
ARTICLE IV
SECTION 4.01. Each Credit Event........................................................................74
ARTICLE V
SECTION 5.01. Financial Statements and Other Information...............................................75
SECTION 5.02. Notices of Material Events...............................................................76
SECTION 5.03. Information Regarding Collateral.........................................................77
SECTION 5.04. Existence; Conduct of Business...........................................................78
SECTION 5.05. Payment of Taxes.........................................................................78
SECTION 5.06. Maintenance of Properties................................................................78
SECTION 5.07. Insurance................................................................................78
SECTION 5.08. Casualty and Condemnation................................................................78
SECTION 5.09. Books and Records; Inspection and Audit Rights...........................................78
SECTION 5.10. Compliance with Laws.....................................................................79
SECTION 5.11. Use of Proceeds and Letters of Credit....................................................79
SECTION 5.12. Additional Subsidiaries; Certain Immaterial Subsidiaries.................................79
SECTION 5.13. Further Assurances.......................................................................80
SECTION 5.14. Interest Rate Protection.................................................................81
SECTION 5.15. Support of Equipment Borrowers...........................................................81
ARTICLE VI
SECTION 6.01. Indebtedness; Certain Equity Securities..................................................81
SECTION 6.02. Liens....................................................................................83
SECTION 6.03. Fundamental Changes......................................................................85
SECTION 6.04. Sale and Lease-Back Transactions.........................................................86
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions................................86
SECTION 6.06. Asset Sales..............................................................................90
SECTION 6.07. Hedging Agreements.......................................................................90
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness....................................90
SECTION 6.09. Transactions with Affiliates.............................................................93
SECTION 6.10. Restrictive Agreements...................................................................93
SECTION 6.11. Amendment of Material Documents..........................................................94
SECTION 6.12. Liabilities of Equipment Borrowers; Business and Liabilities of Finance and Certain Foreign
Subsidiaries.............................................................................94
SECTION 6.13. Designation of Unrestricted Subsidiaries.................................................96
SECTION 6.14. Financial Covenants......................................................................98
ARTICLE VII
Events of Default......................................................................................100
ARTICLE VIII
The Agent..............................................................................................102
ARTICLE IX
SECTION 9.01. Notices.................................................................................104
SECTION 9.02. Waivers; Amendments.....................................................................105
SECTION 9.03. Expenses; Indemnity; Damage Waiver......................................................107
SECTION 9.04. Successors and Assigns..................................................................109
SECTION 9.05. Survival................................................................................111
SECTION 9.06. Counterparts; Integration; Effectiveness................................................112
SECTION 9.07. Severability............................................................................112
SECTION 9.08. Right of Setoff.........................................................................112
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process..............................112
SECTION 9.10. WAIVER OF JURY TRIAL....................................................................113
SECTION 9.11. Headings................................................................................113
SECTION 9.12. Confidentiality.........................................................................114
SECTION 9.13. Interest Rate Limitation................................................................114
SECTION 9.14. Liability of Borrowers..................................................................115
SECTION 9.15. Release of Subsidiaries and Borrowers...................................................115
SECTION 9.16. Special Funding Option...................................................................116
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.01A-- Revolving Commitments as of Amendment Effectiveness Date
Schedule 3.03 -- LLC Approvals
Schedule 3.05 -- Properties
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 3.17 -- Mortgages
Schedule 4.02 -- Immaterial Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
Schedule 6.13 -- Unrestricted Subsidiaries as of the Amendment Effectiveness
Date
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Perfection Certificate
Exhibit C -- [omitted]
Exhibit D -- Form of RC Guarantee Agreement
Exhibit E -- Form of Term Loan Guarantee Agreement
Exhibit F -- Form of Shared Collateral Pledge Agreement
Exhibit G -- Form of Shared Collateral Security Agreement
Exhibit H -- Form of Term Loan Security Agreement
Exhibit I -- Form of RC Indemnity, Subrogation and Contribution Agreement
Exhibit J -- Form of Term Loan Indemnity,
Subrogation and Contribution Agreement
Exhibit K -- [omitted]
Exhibit L -- [omitted]
Exhibit M -- [omitted]
Exhibit N -- Form of Loan Allocation Agreement
Exhibit O -- Permitted Indemnification Obligations
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
September 30, 1999 among LEVEL 3 COMMUNICATIONS, INC., LEVEL 3
COMMUNICATIONS, LLC, LEVEL 3 INTERNATIONAL SERVICES, INC., LEVEL
3 INTERNATIONAL, INC., BTE EQUIPMENT, LLC, ELDORADO FUNDING, LLC,
the LENDERS party hereto, and JPMORGAN CHASE BANK, as
Administrative Agent and Collateral 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 Lender" shall have the meaning assigned thereto in
Section 2.21(b).
"Administrative Agent" means JPMorgan Chase Bank, 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.
"Agent" means JPMorgan Chase Bank, in its capacities as Administrative
Agent and 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 plus 1/2 of 1%. 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.
"Amendment Agreement" means the Amendment and Restatement Agreement dated
as of August 23, 2002, among Level 3, the Borrowers, certain Lenders and the
Agent.
"Amendment Effectiveness Date" has the meaning given such term in the
Amendment Agreement.
"Applicable Commitment Fee Rate" means, with respect to the commitment fee
payable pursuant to Section 2.13.(a), a rate per annum equal to (x) 1.00% for
each day on which Usage is less than 33%, (y) 0.75% for each day on which Usage
is equal to or greater than 33% but less than or equal to 66% and (z) 0.50% for
each day on which Usage is greater than 66%. For purposes of the foregoing,
"Usage" means, on any date, the percentage obtained by dividing (i) the sum of
the aggregate outstanding Tranche A Term Loans and the aggregate Revolving
Exposure on such date by (ii) the sum of the aggregate outstanding Tranche A
Term Loans, unutilized Tranche A Commitments and Revolving Commitments on such
date.
"Applicable Percentage" means, with respect to any Revolving Lender, the
perceNtage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day (a) with respect to any Tranche B Term
Loan, (i) (A) prior to the Third Amendment Effective Date, 2.50% per annum, (B)
on and after the Third Amendment Effective Date but prior to the Amendment
Effectiveness Date, 2.75% per annum, and (C) on and after the Amendment
Effectiveness Date, 3.25% per annum, in the case of an ABR Loan and (ii) (A)
prior to the Third Amendment Effective Date, 3.50% per annum, (B) on and after
the Third Amendment Effective Date but prior to the Amendment Effectiveness
Date, 3.75% per annum and (C) on and after the Amendment Effectiveness Date,
4.25% per annum, in the case of a Eurodollar Loan, (b) with respect to any
Tranche C Term Loan, (i) prior to the Amendment Effectiveness Date, 3.00% per
annum and on and after the Amendment Effectiveness Date, 3.50% per annum, in the
case of an ABR Loan and (ii) prior to the Amendment Effectiveness Date, 4.00%
per annum and on and after the Amendment Effectiveness Date, 4.50% per annum, in
the case of a Eurodollar Loan, and (c) with respect to any ABR Loan or
Eurodollar Loan that is a Revolving Loan or a Tranche A Term Loan, as the case
may be, the applicable rate per annum set forth below in the applicable chart
under the
caption "ABR Spread" or "Eurodollar Spread", as the case may be, based upon the
ratings established by Moody's and S&P for the Index Debt:
Prior to the Amendment Effectiveness Date
Level Ratings ABR Spread Eurodollar Spread
IV >/=BBB-/Baa3 0.50% 1.50%
III BB+/Ba1 1.00% 2.00%
II BB/Ba2 1.25% 2.25%
I [less than]BB/Ba2 1.75% 2.75%
On and after the Amendment Effectiveness Date
Level Ratings ABR Spread Eurodollar Spread
IV >/=BBB-/Baa3 1.00% 2.00%
III BB+/Ba1 1.50 % 2.50%
II BB/Ba2 1.75% 2.75%
I [less than]BB/Ba2 2.25% 3.25%
For purposes of the foregoing, (a) each change in the Applicable Rate
resulting from a publicly announced change in the ratings shall be effective, in
the case of an upgrade during the period commencing on and including the date
of delivery to the Administrative Agent of written notification thereof from
Level 3 and ending on the date immediately preceding the effective date of the
next such change and, in the case of a downgrade, during the period commencing
on and including the date of public announcement thereof and ending on the date
immediately preceding the effective date of the next such change, (b) in the
event the ratings established by Moody's and S&P fall within different Levels,
interest rate spreads shall be based on the lower of the two ratings unless the
different ratings are two or more Levels apart, in which case interest rate
spreads will be based on a rating one Level above the lower of the two ratings
and (c)if neither Moody's nor S&P maintains a rating for the Index Debt, the
ratings shall be deemed to be in Level I. If the rating system of Moody's or S&P
shall change, or if either of them shall cease rating the Index Debt (other than
by reason of any action or nonaction by Level 3 following or in anticipation of
a ratings downgrade), Level 3 and the
Administrative Agent shall negotiate in good faith to amend (with the consent of
the Required Lenders) the references to specific ratings in this definition
(including by way of substituting another rating agency mutually acceptable to
Level 3 and the Administrative Agent for the rating agency with respect to which
the rating system has changed or for which no rating is then in effect) to
reflect such changed rating system or the nonavailability of ratings from such
rating agency, and pending agreement on such amendment, the rating in effect
immediately prior to such change or cessation will apply. If any rating agency
shall not have a rating in effect by reason of any action or nonaction by
Level 3 following or in anticipation of a ratings downgrade, then such rating
agency shall be deemed to have established a rating in Level I.
"Assessment Rate" means, for any day, the annual assessment rate in effect
on such day that is payable by a member of the Bank Insurance Fund classified as
"well-capitalized" and within supervisory subgroup "B" (or a comparable
successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation for insurance
by such Corporation of time deposits made in dollars at the offices of such
member in the United States; provided that if, as a result of any change in any
law, rule or regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall
be determined by the Administrative Agent to be representative of the cost of
such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
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.
"Attributable Debt" means, on any date, in respect of any lease of Level 3
or any Restricted Subsidiary entered into as part of a sale and leaseback
transaction subject to Section 6.04, (i) if such lease is a Capital Lease
Obligation, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, and (ii) if
such lease is not a Capital Lease Obligation, the capitalized amount of the
remaining lease payments under such lease that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP if such lease
were accounted for as a Capital Lease Obligation.
"Board" means the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrowers" means the RC Borrowers and the Equipment Borrowers.
"Borrowing" means (a) Loans of the same Class and Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect, or (b) a Swingline Loan.
"Borrowing Request" means a request by a Borrower for a Borrowing in
accordance with Section 2.03.
"BTE" means BTE Equipment, LLC, a Wholly Owned special purpose subsidiary
of Level 3.
"BTE Adjusted Assets" means, with respect to BTE as of the last day of any
fiscal quarter, the sum of (a) the net book value of the property, plant and
equipment of BTE (giving effect to all depreciation and to obsolescence and
other applicable reserves or write-offs and all impairment charges taken by
Level 3 or any Subsidiary attributable to assets of BTE, regardless of whether
reflected on the books of BTE) plus (b) the aggregate amount of BTE's balances
of cash and marketable securities in the form of Permitted Investments, in each
case to the extent that such net book value (as so reduced) or balances would be
reflected on the balance sheet of BTE that would be used in the preparation of a
combined balance sheet of Level 3 and the Subsidiaries as of such date in
accordance with GAAP.
"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 Eurodollar 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.
"Capital Expenditures" means, for any period, without duplication, (a) the
additions to property, plant and equipment and other capital expenditures of
Level 3 and the Subsidiaries that are (or would be) set forth in a combined
statement of cash flows of Level 3 and the Subsidiaries for such period prepared
in accordance with GAAP and (b) Capital Lease Obligations incurred by Level 3
and the Subsidiaries during such period. As used in computing "Excess Cash
Flow", each reference in clauses (a) and (b) to "Subsidiaries" shall be deemed
to be a reference to "Restricted Subsidiaries".
"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.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase or subscribe for any of
the foregoing, or any warrants, rights or options to purchase or subscribe for
any such warrants, rights or options.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person other than Level 3 and
Wholly Owned Subsidiaries of Level 3 of any shares of capital stock of any
Borrower or (b) the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934
(the "Exchange Act") or any successor provisions to either of the
foregoing), including any group acting for the purpose of
acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act, other than
any one or more of the Permitted Holders, becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act, except
that a person will be deemed to have "beneficial ownership" of
all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 35% or more of the total
voting power of the voting stock of Level 3; provided, however,
that the Permitted Holders are the "beneficial owners" (as
defined in Rule 13d-3 under the Exchange Act, except that a
person will be deemed to have "beneficial ownership" of all
shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage
of time), directly or indirectly, in the aggregate of a lesser
percentage of the total voting power of the voting stock of
Level 3 than such other person or group (for purposes of this
clause (b)(i), such person or group shall be deemed to
beneficially own any voting stock of a corporation (the
"specified corporation") held by any other corporation (the
"parent corporation") so long as such person or group
beneficially owns, directly or indirectly, in the aggregate a
majority of the total voting power of the voting stock of such
parent corporation; or
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the board of
directors of Level 3 (together with any new directors whose
election or appointment by such board or whose nomination for
election by the shareholders of Level 3 was approved by a vote of
a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any
reason to constitute a majority of the board of directors of
Level 3 then in office; or
(iii) the shareholders of Level 3 shall have approved any
plan of liquidation or dissolution of Level 3; or
(iv) any "change of control" as defined in any agreement or
instrument governing Material Indebtedness of Level 3 or a
Restricted Subsidiary shall occur.
"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 the Issuing Bank
(or, for purposes of Section 2.16(c), by any lending office of such Lender or by
such Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (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 Revolving Loans, Tranche
A Term Loans, Tranche B Term Loans, Tranche C Term Loans or Swingline Loans and,
when used in reference to any Commitment, refers to whether such Commitment is a
Revolving Commitment, Tranche A Commitment, Tranche B Commitment or Tranche C
Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means any and all "Collateral", as defined in any applicable
Security Document.
"Collateral Agent" means JPMorgan Chase Bank in its capacity as collateral
agent for the Secured Parties hereunder.
"Collateral and Guarantee Requirement" means the requirement that:
(a) the Agent shall have received from each Loan Party either
(i) counterparts of the RC Guarantee Agreement and the Term Loan Guarantee
Agreement duly executed and delivered on behalf of such Loan Party or
(ii) in the case of any person that becomes a Loan Party after the
Effective Date, supplements to the RC Guarantee Agreement and the Term Loan
Guarantee Agreement, in the forms specified therein, duly executed and
delivered on behalf of such Loan Party, together with, in the case of each
Subsidiary Loan Party, counterparts of the RC Indemnity, Subrogation and
Contribution Agreement and the Term Loan Indemnity, Subrogation and
Contribution
Agreement or supplements thereto, in the form specified therein, duly
executed and delivered on behalf of such Subsidiary Loan Party;
(b) the Agent shall have received from each Loan Party either
(i) counterparts of the Shared Collateral Pledge Agreement and Shared
Collateral Security Agreement duly executed and delivered on behalf of such
Loan Party or (ii) in the case of any Person that becomes a Loan Party
after the Effective Date, supplements to the Shared Collateral Pledge
Agreement and Shared Collateral Security Agreement, in the forms specified
therein, duly executed and delivered on behalf of such Loan Party;
(c) all outstanding Equity Interests owned by or on behalf of Level 3
or any Subsidiary Loan Party shall have been pledged pursuant to the Shared
Collateral Pledge Agreement and, if such Equity Interests are in
certificated form, the Agent shall have received certificates or other
instruments representing all such Equity Interests, together with stock
powers or other instruments of transfer with respect thereto endorsed in
blank (provided that the Loan Parties shall not be required to pledge more
than 65% of the outstanding voting Equity Interests of any Foreign
Subsidiary);
(d) all Indebtedness of Level 3, the Borrowers and each Subsidiary
that is owing to any Loan Party shall be evidenced by a promissory note and
shall have been pledged pursuant to the Shared Collateral Pledge Agreement,
and the Agent shall have received such promissory notes, together with
instruments of transfer with respect thereto endorsed in blank;
(e) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the Agent
to be filed, registered or recorded to create the Liens intended to be
created by the Security Documents and perfect such Liens to the extent
required by, and with the priority required by, the Security Documents,
shall have been filed, registered or recorded or delivered to the Agent for
filing, registration or recording;
(f) the Agent shall have received a Mortgagee Intercreditor Agreement
with respect to any real property of a Loan Party mortgaged to a third
party mortgagee and containing Telecom Equipment Assets (including
fixtures), duly executed and delivered by such mortgagee, and shall have
received such mortgages or other instruments, duly executed by such Loan
Party and in form suitable for recordation or filing in real estate
records, as may be required or desirable in the Agent's opinion to grant a
Lien in favor of the Agent on such fixtures constituting Telecom Equipment
Assets;
(g) the Agent shall have received (i) counterparts of a Mortgage with
respect to each Mortgaged Property duly executed and delivered by the
record owner of such Mortgaged Property, (ii) a policy or policies of title
insurance issued by a nationally recognized title insurance company
insuring the Lien of each such Mortgage as a valid first Lien, free of any
other Liens except Permitted Encumbrances, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as the Agent may
reasonably request with respect to such Mortgage or Mortgaged Property; and
(h) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents to which it is a party, the performance of its
obligations thereunder and the granting by it of the Liens thereunder.
Notwithstanding the foregoing, (i) the Equipment Borrowers shall not enter into
any Guarantee Agreement, the Shared Collateral Pledge Agreement, the Shared
Collateral Security Agreement or the RC Indemnity, Subrogation and Contribution
Agreement and (ii) in the event the consent of any landlord or any other third
party (other than a Governmental Authority and any mortgagee with respect to
Specified Real Estate) is required to permit the grant or perfection of any Lien
under the Shared Collateral Security Agreement, including with respect to any
assignment of railroad or similar rights of way, Level 3 and the RC Borrowers
will use their commercially reasonable efforts (which will not include the
payment of any consideration) to obtain such required consent and effect the
grant and perfection of such Lien as soon as practicable, provided that if such
consent cannot be obtained following the use of such commercially reasonable
efforts such Lien need not be granted or perfected, as the case may be, and the
Collateral and Guarantee Requirement shall not be deemed to be unsatisfied
during any period during which Level 3 and the Borrowers are complying with the
foregoing or in the event such consent cannot be so obtained.
"Colocation Guarantee" means a direct or indirect Guarantee by Level 3 or
any Restricted Subsidiary of Indebtedness of a domestic Colocation Subsidiary
consisting of (i) any lease (regardless of whether a Capital Lease Obligation)
or license pursuant to which Level 3 or such Restricted Subsidiary leases or
licenses the right to use all or any portion of a domestic colocation facility
owned or operated by such Colocation Subsidiary (a "Colocation Lease") and the
payments under which provide funds to such Colocation Subsidiary to enable it to
service such Indebtedness and/or (ii) any Guarantee by Level 3 or any Restricted
Subsidiary in favor of the holders of such Indebtedness under which the
obligations of Level 3 or such Restricted Subsidiary are limited to
indemnification provisions substantially similar to those set forth in Exhibit O
hereto. Any Colocation Guarantee consisting of both a lease described in
clause (i) above and a Guarantee described in clause (ii) above relating to the
same
Indebtedness of a Colocation Subsidiary shall be deemed a single Colocation
Guarantee for purposes of any limitations on the aggregate amount of Colocation
Guarantees hereunder. For purposes hereof, the amount of a Colocation Guarantee
shall be deemed on any date to be the aggregate principal amount on such date of
Colocation Subsidiary Indebtedness to which such Colocation Guarantee relates
(or such lesser amount, if any, to which the maximum aggregate liability of
Level 3 and the Restricted Subsidiaries under such Colocation Guarantee is
limited by the express terms thereof). For purposes of this Agreement,
Colocation Guarantees shall not in any event constitute Indebtedness permitted
to be incurred pursuant to Section 6.01(a)(vi).
"Colocation Subsidiary" means a Subsidiary not engaged in any business or
activity other than the provision of colocation and related and incidental
services which does not own any material assets integral to the operations of
Level 3's domestic network. It is understood that a Subsidiary's gateway
facility is not integral to such operations unless it is the sole gateway
facility in the relevant market.
"Combined Adjusted EBITDA" means, for any period, without duplication, (a)
the sum of (i) Combined EBITDA for such period, (ii) cash received from IRU
sales in such period and (iii) non-cash cost of goods sold relating to IRU sales
for such period minus (b) amortized revenues for such period and excluding (c)
the effects of fiber and capacity swaps, all the components of which are as
determined on a combined basis with respect to Level 3 and the Subsidiaries in
accordance with GAAP (other than the definition of Combined EBITDA which is as
set forth in this Agreement and other than the treatment of IRU sales which is
as set forth in this definition). For purposes of Section 6.14, if Level 3 or
any of its Subsidiaries makes any Permitted Business Acquisition during any
period in respect of which Combined Adjusted EBITDA is to be determined
hereunder, such Combined Adjusted EBITDA will be determined on a pro forma basis
as if such acquisition were consummated on the first day of the relevant period;
provided, however, that, for periods prior to the date upon which such
acquisition is consummated, only positive EBITDA of an entity acquired in
connection with a Permitted Business Acquisition shall be included in
determining Combined Adjusted EBITDA for purposes of Section 6.14. In the event
that Level 3 or any of its Subsidiaries acquires an entity in connection with a
Permitted Business Acquisition for which stand alone financial statements are
not available, Level 3 hereby agrees to engage KPMG LLP or other independent
public accountants of recognized national standing to conduct a review (such
review to be conducted in accordance with GAAS) of financial statements prepared
by Level 3 specifically for such acquired entity, from which Combined Adjusted
EBITDA for such acquired entity shall be determined in accordance with this
definition and the terms of this Agreement.
"Combined Cash Balances" means, as of any weekly testing date, the
aggregate amount of cash and marketable securities in the form of Permitted
Investments held by Level 3 and the Subsidiaries (other than 91 Holding Corp.
and its subsidiaries). In determining such aggregate amount (a) the computation
shall include all such cash and marketable securities that are pledged by
Finance to secure the Obligations and held under Finance Collateral Control
Agreements entered into with the Collateral Agent, (b) the computation shall
exclude all such cash and marketable securities subject to agreements, Liens
(other than Liens for the benefit of the Collateral Agent and the Lenders) or
other arrangements that restrict the use of such cash or marketable securities
in the business of Level 3 or the Subsidiaries, and (c) the weekly testing date
shall be the Friday of each week, or when such day is not a Business Day, the
next succeeding Business Day.
"Combined Cash Interest Expense" means, for any period, the excess of (a)
the sum of (i) the interest expense (including imputed interest expense in
respect of Capital Lease Obligations) of Level 3 and the Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, (ii) any
interest accrued during such period in respect of Indebtedness of Level 3 or any
Subsidiary that is required to be capitalized rather than included in
consolidated interest expense for such period in accordance with GAAP, plus
(iii) any cash payments made during such period in respect of obligations
referred to in clause (b)(ii) below that were amortized or accrued in a previous
period, minus (b) the sum of (i) to the extent included in such consolidated
interest expense for such period, non-cash amounts attributable to amortization
of financing costs paid in a previous period, plus (ii) to the extent included
in such consolidated interest expense for such period, non-cash amounts
attributable to amortization of debt discounts or accrued interest payable in
kind for such period.
"Combined EBITDA" means, for any period, Combined Income (Loss) from
Operations of Level 3 and its Subsidiaries for such period plus, without
duplication and to the extent deducted from revenues in determining such
Combined Income (Loss) from Operations, the sum of (a) all amounts attributable
to depreciation and amortization for such period, (b) all non-cash compensation
charges during such period (it being understood that charges shall be deemed
non-cash charges until the period that cash disbursements attributable to such
charges are made, at which point such charges shall be deemed cash charges) and
(c) all non-cash non-recurring charges during such period other than non-cash
charges relating to sales of dark fiber, all the components of which are as
determined on a combined basis with respect to Level 3 and the Subsidiaries in
accordance with GAAP. For purposes of Section 6.14, if Level 3 or any of its
Subsidiaries makes any Permitted Business Acquisition during any period in
respect of which Combined EBITDA is to be determined hereunder, such Combined
EBITDA will be determined on a pro forma basis as if such acquisition were
consummated on the first day of the relevant period; provided, however, that,
for periods prior to the date upon which such acquisition is consummated, only
positive EBITDA of an entity acquired in connection with a
Permitted Business Acquisition shall be included in determining Combined EBITDA
for purposes of Section 6.14. In the event that Level 3 or any of its
Subsidiaries acquires an entity in connection with a Permitted Business
Acquisition for which stand alone financial statements are not available, Level
3 hereby agrees to engage KPMG LLP or other independent public accountants of
recognized national standing to conduct a review (such review to be conducted in
accordance with GAAS) of financial statements prepared by Level 3 specifically
for such acquired entity, from which Combined EBITDA for such acquired entity
shall be determined in accordance with this definition and the terms of this
Agreement.
"Combined Fixed Charges" means for any period, the sum for Level 3 and the
Subsidiaries for such period of (a) Combined Cash Interest Expense for such
period net of cash interest income for such period, (b) the aggregate amount of
scheduled principal payments made during such period in respect of Long-Term
Indebtedness of Level 3 and the Subsidiaries (other than payments made by Level
3 or any Subsidiary to Level 3 or a Subsidiary), (c) the aggregate amount of
principal payments scheduled during such period in respect of Long-Term
Indebtedness of Level 3 and the Subsidiaries to the extent discharged by
prepayments made not more than one year prior to the date of such respective
scheduled principal payments, (d) the aggregate amount of cash payments made
during such period by Level 3 and the Subsidiaries under financing leases and
other off balance sheet financing arrangements, (e) the aggregate amount of cash
payments made during such period by Level 3 and the Subsidiaries in respect of
preferred stock and (f) the aggregate amount of income Taxes paid in cash by
Level 3 and the Subsidiaries during such period, all as determined on a combined
basis with respect to Level 3 and the Subsidiaries in accordance with GAAP.
"Combined Gross Property Plant and Equipment" means, at any date, the gross
amount (without giving effect to depreciation, obsolescence or similar reserves)
that would be reflected as property, plant and equipment on a combined balance
sheet of Level 3 and the Subsidiaries prepared as of such date in accordance
with GAAP.
"Combined Income (Loss) from Operations" means, for any period, the income
or loss from operations of Level 3 and the Subsidiaries for such period
determined on a combined basis in accordance with GAAP.
"Combined Net Income" means, for any period, the net income or loss of
Level 3 and the Subsidiaries for such period determined on a combined basis in
accordance with GAAP; provided that there shall be excluded the income of any
Person (other than Level 3) in which any other Person (other than Level 3 and
the Subsidiaries and other than directors holding qualifying shares in
compliance with applicable law) owns an Equity Interest, except to the extent of
dividends or other distributions actually paid to Level 3 or any of the
Subsidiaries during such period.
"Combined Senior Secured Debt" means, on any date, the Loans and all other
Indebtedness that would be reflected as a liability on a combined balance sheet
of Level 3 and the Subsidiaries prepared as of such date in accordance with GAAP
which is secured by any assets of Level 3 or any Subsidiary.
"Combined Total Assets" means, on any date, the aggregate amount of assets
(after giving effect to amortization, depreciation and all applicable reserves)
that would be reflected as assets on a combined balance sheet of Level 3 and the
Restricted Subsidiaries prepared as of such date in accordance with GAAP.
"Combined Total Debt" means, at any date, all Indebtedness of Level 3 and
its Subsidiaries that would be reflected as a liability on a combined balance
sheet of Level 3 and its Subsidiaries prepared as of such date in accordance
with GAAP other than any Unrestricted Subordinated Debt.
"Commitment" means a Revolving Commitment, Tranche A Commitment, Tranche B
Commitment or Tranche C Commitment, or any combination thereof (as the context
requires).
"Communications Act" means the Communications Act of 1934 and any similar
or successor Federal statute and the rules, regulations and published policies
of the Federal Communications Commission thereunder, all as amended and as the
same may be in effect from time to time.
"Contributed Capital" means, at any date, the sum (without duplication) of
(a) the amount of Contributed Capital as of June 30, 2002, under the definition
of Contributed Capital in effect on such date ($6,140,519,000) plus (b) Equity
Proceeds received by Level 3 subsequent to June 30, 2002, plus (c) the amount of
Equity Purchase Consideration received by Level 3 or any Subsidiary after
June 30, 2002, plus (d) the amount of Special Asset Gains realized by Level 3
and its Subsidiaries after June 30, 2002 plus (e) Combined Total Debt.
"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.
"Conversion Proceeds" means an amount deemed for purposes hereof to have
been received by Level 3 at the time of conversion of any convertible debt
securities of Level 3 (other than the 6% Convertible Subordinated Notes due 2009
and 2010, the conversion of which shall not result in Conversion Proceeds) into
common stock or Non-Cash Pay Preferred
Stock of Level 3 equal to the principal amount of such debt securities so
converted and any accrued and unpaid interest thereon which is forfeited in
connection with such conversion.
"Debt Repurchases Basket" means, at any time, (a) the sum at such time of:
(i) $300,000,000;
(ii) 50% of the cash Net Proceeds received by Level 3 after July
18, 2002, from the issuance and sale of Capital Stock of Level 3 and
not applied to any other Designated Equity Proceeds Use;
(iii) 50% of the cash Net Proceeds received by Level 3 after July
18, 2002, from the issuance and sale of Indebtedness of Level 3 that
is subordinated to the 6% Convertible Subordinated Notes due 2009 and
2010 of Level 3; and
(iv) 50% of the Conversion Proceeds deemed received by Level 3
upon the conversion to equity of any convertible Indebtedness of Level
3 issued or sold after July 18, 2002, that ranked pari passu with or
senior to the 6% Convertible Subordinated Notes due 2009 and 2010 of
Level 3 when issued or sold and not applied to any other Designated
Equity Proceeds Use;
minus (b) the aggregate amount of payments after the Amendment Effectiveness
Date pursuant to Section 6.08(b)(5)(x).
"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.
"Derivatives Counterparty" means any financial institution, commodities or
stock exchange or clearinghouse with which Level 3 or any Restricted Subsidiary
enters into a derivatives transaction.
"Designated Equity Proceeds Use" means the application of Equity Proceeds
or Conversion Proceeds to any of the following: (i) Restricted Payments pursuant
to stock option plans or other benefit plans for management or employees of
Level 3 and the Restricted Subsidiaries in excess of $3,000,000 in any twelve
month period, (ii) cash dividend payments on preferred stock, (iii) payments of
cash consideration in connection with Permitted Business Acquisitions pursuant
to Section 6.05(e)(A)(ii), (iv) payments of cash consideration in connection
with acquisitions permitted by Section 6.05(f) and (v) each payment after the
Amendment Effectiveness Date pursuant to Section 6.08(b)(5)(x) to the extent
that such
payment reduces the aggregate amount of the Debt Repurchases Basket to an amount
less than the aggregate amount of the additions to the Debt Repurchases Basket
made on or prior to such time under clauses (a)(ii) and (a)(iv) of the
definition thereof.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of America.
"Domestic Subsidiary" shall mean any Subsidiary that is not a Foreign
Subsidiary.
"Effective Date" means September 30, 1999.
"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 Level 3 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.
"Equipment Borrower" means each of (i) BTE and (ii) with respect to
Incremental Loans borrowed by any Person other than BTE pursuant to
Section 2.21(c), Equipment Co. II.
"Equipment Co. II" shall have the meaning assigned thereto in
Section 2.21(c).
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person.
"Equity Proceeds" means the cash Net Proceeds received by Level 3 from the
issuance and sale of common stock of Level 3 or Non-Cash Pay Preferred Stock of
Level 3.
"Equity Purchase Consideration" means the net fair market value of any
assets or properties other than cash transferred to or acquired by Level 3 or
any Subsidiary in consideration of or exchange for the issuance of shares of
common stock of Level 3 or Non-Cash Pay Preferred Stock of Level 3, including in
connection with mergers and stock acquisitions (such net fair market value being
the fair market value of such common stock or Non-Cash Pay Preferred Stock (as
reasonably determined in good faith by the Chief Financial Officer of Level 3,
which determination shall, if applicable, be based on the trading value of such
common stock or Non-Cash Pay Preferred Stock on the closing date of the
transaction).
"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 Level 3 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 Level 3 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 Level 3 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
Level 3 or any of its ERISA Affiliates of any Withdrawal Liability; or (g) the
receipt by Level 3 or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Level 3 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.
"Eurocurrency Reserve Requirements" means the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board and any other banking
authority to which the Agent is subject and applicable to "Eurocurrency
Liabilities", as such term is defined in
Regulation D of the Board, or any similar category of assets or liabilities
relating to eurocurrency fundings. Eurocurrency Reserve Requirements shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Eurodollar", 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 LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
Notwithstanding any other provision of this Agreement or any other Loan Document
to the contrary, it is understood and agreed that no event described in
paragraph (a) or (b) of the definition of "Finance Event of Default" contained
in the Finance Guarantee and Security Agreement shall constitute an "Event of
Default".
"Excess Cash Flow" means, for any fiscal year, the sum (without
duplication) of:
(a) the Combined Net Income of Level 3 and the Subsidiaries 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 Combined Net Income for such fiscal year; plus
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which the combined deferred revenues of Level 3 and the Subsidiaries
increased during such fiscal year; minus
(d) the sum of (i) any non-cash gains included in determining such
Combined 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 combined deferred revenues of Level 3 and its
Subsidiaries decreased during such fiscal year; minus
(e) the sum of (i) Capital Expenditures paid in cash during such
fiscal year (except to the extent attributable to the incurrence of Capital
Lease Obligations or otherwise financed by incurring Long-Term Indebtedness
and except to the extent paid with Net Proceeds in respect of Prepayment
Events or from the issuance of Capital Stock) plus (ii) cash consideration
paid during such fiscal year to make Permitted Business Acquisitions or
other investments permitted hereunder (other than Permitted Investments and
except to the extent financed by incurring Long-Term Indebtedness or
issuing capital stock or other Equity Interests); minus
(f) cash payments made during such fiscal year which were not deducted
in determining such Combined Net Income for such fiscal year that will in a
subsequent fiscal year become a non-cash charge deducted in determining
Combined Net Income for such subsequent fiscal year; minus
(g) the lesser of (i) the aggregate principal amount of Long-Term
Indebtedness repaid or prepaid by Level 3 and the Subsidiaries during such
fiscal year and (ii) the cash consideration paid by Level 3 and the
Subsidiaries in respect thereof, excluding (A) Indebtedness in respect of
Revolving Loans and Letters of Credit (unless accompanied by a
corresponding permanent reduction in the Revolving Commitments), (B) Term
Loans prepaid pursuant to Section 2.11(b) or (c), (C) repayments or
prepayments of Long-Term Indebtedness financed by incurring other Long-Term
Indebtedness.
"Excluded Taxes" means, with respect to the Agent, any Lender, the Issuing
Bank or any other recipient of any payment to be made by or on account of any
obligation of the Borrowers 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 described in clause (a) above and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.20(b)), any withholding tax that (i) is in effect and would apply to
amounts payable to such Foreign Lender at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrowers with respect to such withholding tax
pursuant to Section 2.18(a) or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.18(e).
"Executive Officer" means the chief executive officer, the president, the
chief financial officer, the secretary or the treasurer of Level 3.
"FCC" means the United States Federal Communications Commission.
"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 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.
"Finance" means Level 3 Finance II, LLC, a Delaware limited liability
company.
"Finance Collateral Control Agreement" means (i) with respect to each
deposit or securities account, each Finance Collateral Control Agreement
substantially in the form of Exhibit A to the Finance Guarantee and Security
Agreement or in such other form as may be reasonably agreed to by the Collateral
Agent, and (ii) with respect to Money Market Funds, each Finance Collateral
Control Agreement substantially in the form of Exhibit B to the Finance
Guarantee and Security Agreement or in such other form as may be reasonably
agreed to by the Collateral Agent, in each case among Finance, the applicable
financial institution or, if applicable, the issuer of the Money Market Funds,
and the Collateral Agent for the benefit of the "Secured Parties", as defined
under the Finance Guarantee and Security Agreement.
"Finance Documents" shall have the meaning ascribed thereto in the
Amendment Agreement.
"Finance Event of Default" shall mean the occurrence of any of the
following events:
(a) any representation or warranty made or deemed made by, on behalf
of or in respect of, Finance in or in connection with this Agreement or the
Finance Guarantee and Security Agreement or any amendment or modification
hereof or waiver hereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection herewith
or in respect of Finance thereunder, shall prove to have been incorrect in
any material respect when made or deemed made;
(b) Finance shall fail to observe or perform any covenant, condition
or agreement contained in the Finance Guarantee and Security Agreement;
(c) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise and such failure shall
continue unremedied for a period of 30 days; or
(d) any event or condition occurs that results in the Loans becoming
due prior to their scheduled maturities.
"Finance Guarantee and Security Agreement" means the Finance Guarantee and
Security Agreement, substantially in the form of Exhibit E to the Amendment
Agreement, between Finance and the Collateral Agent for the benefit of the
"Secured Parties", as defined thereunder.
"Financial Officer" means the chief financial officer, principal accounting
officer, vice president-finance, assistant treasurer, treasurer or controller of
Level 3.
"Fixed Charge Ratio" means, for any four-fiscal-quarter period, the ratio
of (a) Combined Adjusted EBITDA for such period to (b) the sum for such period
of (i) Capital Expenditures and (ii) Combined Fixed Charges.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America. For purposes of this
definition, the United States of America, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the laws
of a jurisdiction other than the United States of America or any State thereof
or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United States
of America.
"GAAS" means generally accepted auditing standards in the United States of
America.
"Government Securities" means direct obligations of, or obligations fully
and unconditionally guaranteed or insured by, the United States of America or
any agency or instrumentality thereof.
"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 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 Agreements" means the RC Guarantee Agreement and the Term Loan
Guarantee Agreement.
"Guarantors" means the RC Guarantors and the Term Loan Guarantors.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"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.
"Immaterial Subsidiaries" means either (a) any Subsidiary having neither
(i) a book value of total assets in excess of $500,000 as of the last day of the
fiscal quarter most recently ended or (ii) total revenue in excess of $1,000,000
in the four fiscal quarter period most recently ended, determined in each case
as of any date of delivery of financial statements by Level 3 pursuant to
Sections 5.01(a) or 5.01(b), or (b) the Persons specified as such in Schedule
4.02.
"Incremental Loans" shall have the meaning ascribed thereto in
Section 2.21(b).
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding current accounts
payable incurred in the ordinary course of business), (e) 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, (f) all Guarantees by such Person of Indebtedness of others,
(g) all Capital Lease Obligations of such Person, (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (i) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. 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.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indentures" means (i) the Indenture dated as of April 28, 1998 between
Level 3 and IBJ Schroder Bank & Trust Company, as trustee, with respect to Level
3's 9 1/8% Senior Notes Due 2008, (ii) the Indenture dated as of December 2,
1998 between Level 3 and IBJ Schroder Bank & Trust Company, as trustee, with
respect to Level 3's 10 1/2% Senior Discount Notes Due 2008, (iii) the Indenture
dated as of February 29, 2000 between Level 3 and The Bank of New York, as
trustee, with respect to Level 3's 11% Senior Notes Due 2008, (iv) the Indenture
dated as of February 29, 2000 between Level 3 and The Bank of New York, as
trustee, with respect to Level 3's 11% Senior Notes Due 2008, (v) the Indenture
dated as of February 29, 2000 between Level 3 and The Bank of New York, as
trustee, with respect to Level 3's 11 1/4% Senior Notes Due 2010, (vi) the
Indenture dated as of February 29, 2000 between Level 3 and The Bank of New
York, as trustee, with respect to Level 3's 12 7/8% Senior Discount Notes Due
2010, (vii) the Euro Securities Indenture dated as of February 29, 2000 between
Level 3 and The Bank of New York, as trustee, with respect to Level 3's 10 3/4%
Senior Euro Notes Due 2008 and (viii) the Euro Securities Indenture dated as of
February 29, 2000 between Level 3 and The Bank of New York, as trustee, with
respect to Level 3's 11 1/4% Senior Euro Notes Due 2010.
"Index Debt" means the highest rated senior, unsecured, Long-Term
Indebtedness for borrowed money of Level 3 that is not guaranteed (including by
any Subsidiary) or otherwise credit enhanced.
"Intercity Route Miles Completed" means the number of intercity route miles
with completed conduits installed.
"Intercity Route Miles with Fiber Completed" means the number of intercity
route miles with completed conduits, including fiber, installed.
"Interest Election Request" means a request by a Borrower to convert or
continue a Revolving Borrowing or Term Borrowing in accordance with
Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than
a Swingline Loan), the last day of each March, June, September and December, (b)
with respect to any Eurodollar 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
Eurodollar 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,
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or nine or twelve months thereafter if, at the time of the relevant
Borrowing, all Lenders participating therein agree to make an interest period of
such duration available), 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.
"Investment" means purchasing, holding or acquiring (including pursuant to
any merger with any Person that was not a Wholly Owned Restricted Subsidiary
prior to such merger) any Capital Stock, evidences of indebtedness or other
securities (including any option,
warrant or other right to acquire any of the foregoing) of, or making or
permitting to exist any loans or advances (other than commercially reasonable
extensions of trade credit) to, guaranteeing any obligations of, or making or
permitting to exist any investment or any other interest in, any other Person,
or purchasing or otherwise acquiring (in one transaction or a series of
transactions) any assets of any Person constituting a business unit. The amount,
as of any date of determination, of any Investment shall be the original cost of
such Investment (including any Indebtedness of a Person existing at the time
such Person becomes a Restricted Subsidiary in connection with any Investment
and any Indebtedness assumed in connection with any acquisition of assets), plus
the cost of all additions, as of such date, thereto and minus the amount, as of
such date, of any portion of such Investment repaid to the investor in cash (or,
in the case in which an Investment is made in property and the identical
property is returned to the Person that made the Investment, the lesser of (a)
the amount of the property computed as set forth in this definition as of the
date of the Investment and (b) the fair market value of such property on the
date of its return) as a repayment of principal or a return of capital, as the
case may be (except to the extent such repaid amount has been included in
Combined Net Income), but without any other adjustments for increases or
decreases in value, or write-ups, write-downs or write-offs with respect to such
Investment. In determining the amount of any Investment involving a transfer of
any property other than cash, such property shall be valued at its fair market
value at the time of such transfer.
"Issuing Bank" means JPMorgan Chase Bank, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.05(i). The Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"knowledge" means to the knowledge of any Executive Officer or any
Financial Officer of Level 3.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the RC Borrowers at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"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
or an Incremental
Facility Amendment, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance. Unless the context otherwise requires,
the term "Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Level 3" means Level 3 Communications, Inc., a Delaware corporation.
"Level 3 Indentures" means the indentures in effect on the date hereof
relating to various series of senior unsecured notes of Level 3 outstanding on
the date hereof and issued in offerings pursuant to Rule 144A under the
Securities Act of 1933 or in offerings registered under the Securities Act, as
the same may be amended and in effect from time to time.
"Leverage Ratio" means, on any date, the ratio of Combined Total Debt on
such date to Combined Adjusted EBITDA for the period of four consecutive fiscal
quarters of Level 3 most recently ended on or prior to such date.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market 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
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $10,000,000 and for a maturity comparable to such Interest Period
are offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"License" means any license granted by the FCC or any foreign
telecommunications regulatory body.
"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
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 Allocation Agreement" means the loan allocation agreement,
substantially in the form of Exhibit N hereto, to be entered into by the
Administrative Agent and each of the Lenders.
"Loan Documents" means this Agreement, the Commitment Letter and Fee
Letters dated July 22, 1999 among Level 3, Level 3 Communications, LLC and
certain of the Lenders, the Amendment Agreement and the Security Documents. The
Loan Documents do not include any document delivered by Finance in satisfaction
of the conditions precedent set forth in the Amendment Agreement or entered into
by Finance pursuant to any document so delivered.
"Loan Parties" means Level 3, the Borrowers and the other Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrowers pursuant to
this Agreement.
"Local Markets" means the markets referred to in the letter from Level 3
dated the date hereof delivered to the Administrative Agent.
"London Properties" means the properties located at 6 Braham Street and
260 Goswell Road in London, England.
"Long-Term Indebtedness" means any Indebtedness that, in accordance with
GAAP, constitutes (or when incurred constituted) a long-term liability.
"Markets with Fiber Networks" means the number of Local Markets where Level
3 is able to offer services over owned networks.
"Master Lease Agreement" means, collectively, each of (i) the Master Lease
Agreement dated the date hereof and as amended and restated as of August 23,
2002 between BTE, as lessor, and Level 3 Communications, LLC, as lessee, and as
amended from time to time thereafter in form and substance satisfactory to the
Administrative Agent, and (ii) the leases between BTE, as lessor, and other
entities, as lessees, in each case relating to the lease by BTE to such lessees
of assets owned by BTE and financed, in whole or in part, with the proceeds of
Term Loans, which leases shall be on terms substantially similar to those in the
Master Lease Agreement referenced in clause (i) of this definition.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition, financial or otherwise of Level 3 and
the Restricted Subsidiaries taken as a whole, (b) the ability of any Loan Party
to perform any of its obligations under any Loan Document or (c) the rights of
or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Level 3, any Borrower or any other Restricted Subsidiary
in an aggregate principal amount exceeding $25,000,000. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
Level 3, any Borrower or any Restricted Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to
any netting agreements) that Level 3, such Borrower or such Restricted
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time (or is required to pay if such Hedging Agreement has been terminated).
"Money Market Fund" means any investment company (or series thereof)
organized and operating in the United States (i) which values its securities
using the "amortized cost method" pursuant to Rule 2a-7 adopted under the
Investment Company Act of 1940 (the "Investment Company Act"), (ii) which is
duly registered with the United States Securities and Exchange Commission as an
open-end management investment company under the Investment Company Act and
(iii) substantially all the assets of which are invested in Permitted
Investments.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and rents,
leasehold mortgage or other security document granting a Lien on any Mortgaged
Property to secure the RC Obligations or the Term Loan Obligations, as the case
may be. Each Mortgage shall be satisfactory in form and substance to the
Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real property and the
improvements thereto owned by a Loan Party and identified on Schedule 3.17, and
includes each other parcel of real property and improvements thereto with
respect to which a Mortgage is granted pursuant to Section 5.12 or 5.13.
"Mortgagee Intercreditor Agreement" means an intercreditor agreement
reasonably satisfactory to the Collateral Agent between the Collateral Agent and
the mortgagee or lessor of Specified Real Estate or other significant real
estate permitted by Sections 6.02 and 6.03 to be mortgaged or sold and leased
back by Level 3 or a Restricted Subsidiary pursuant
to which such mortgagee or lessor recognizes and consents to the first priority
Lien of the Collateral Agent on Telecom Equipment Assets, including fixtures,
located at, incorporated in or attached to such real estate (other than any such
assets integral to the customary operation of any building as such for its
intended purpose) and the Collateral Agent and such mortgagee or lessor agree
with respect to the exercise of remedies by the Collateral Agent with respect to
such Telecom Equipment Assets.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by Level 3 and the Restricted
Subsidiaries to third parties in connection with such event, (ii) in the case of
a sale or other disposition of an asset (including pursuant to a casualty or
condemnation), the amount of all payments required to be made by Level 3 and the
Restricted Subsidiaries as a result of such event to repay Indebtedness (other
than Loans) secured by such asset or otherwise subject to mandatory prepayment
as a result of such event, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by Level 3 and the Restricted Subsidiaries, and the
amount of any reserves established by Level 3 and the Restricted Subsidiaries to
fund contingent liabilities reasonably estimated to be payable and that are
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of Level 3).
"Net Working Capital" means, at any date, (a) the combined current assets
of Level 3 and the Subsidiaries as of such date (excluding cash and Permitted
Investments) minus (b) the combined current liabilities of Level 3 and the
Subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). 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-Cash Pay Preferred Stock" means preferred stock of Level 3 which
(i) is not mandatorily redeemable, in whole or part, or required to be
repurchased or reacquired, in whole or in part, by Level 3 or any Restricted
Subsidiary, and which does not require any payment of cash dividends, in each
case, prior to the date that is six months after the Tranche B Maturity Date;
provided, however, that any preferred stock which would constitute Non-Cash Pay
Preferred Stock but for provisions thereof giving holders thereof the right to
require Level 3 to repurchase or redeem such preferred stock upon the occurrence
of a change of control occurring prior to the Tranche B Maturity Date shall
constitute Non-Cash Pay Preferred Stock
if the change of control provisions applicable to such preferred stock are no
more favorable to the holders of such preferred stock than the provisions
applicable to the Loans contained in this Agreement and such preferred stock
specifically provides that Level 3 will not repurchase or redeem any such
preferred stock pursuant to such provisions prior to the Borrowers' or Level 3's
repayment of the Loans and the termination of all Commitments hereunder, (ii) is
not secured by any assets of Level 3 or any Restricted Subsidiary, (iii) is not
Guaranteed by any Restricted Subsidiary and (iv) is not exchangeable or
convertible into Indebtedness of Level 3 or any Restricted Subsidiary or any
preferred stock (other than Non-Cash Pay Preferred Stock) of Level 3 or any
Subsidiary.
"Obligations" means the RC Obligations and the Term Loan Obligations.
"OECD" means the Organization for Economic Cooperation and Development.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
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 or Finance Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit B or
any other form approved by the Administrative Agent.
"Permitted Business Acquisition" means (a) any acquisition by Level 3 or a
Subsidiary Loan Party (other than an Equipment Borrower) of all or substantially
all the assets of, or all the Equity Interests in, a Person or division or line
of business of a Person, if immediately after giving effect thereto, no Default
has occurred and is continuing or would result therefrom, (b) such acquired
Person or business is predominately engaged in one or more Telecommunications
Businesses in the United States of America, (c) each Subsidiary (other than
Foreign Subsidiaries) formed for the purpose of or resulting from such
acquisition shall be a Subsidiary Loan Party and all the Equity Interests of
each such Subsidiary shall be owned directly by Level 3 and/or Subsidiary Loan
Parties and shall have been pledged pursuant to the Shared Collateral Pledge
Agreement, (d) the Collateral and Guarantee Requirement shall have been
satisfied with respect to each such Subsidiary (but only, in the case of Foreign
Subsidiaries, to the extent provided therein) and all consents of Governmental
Authorities or third parties necessary to permit each such Subsidiary to enter
into each applicable RC Security Document and pledge the Collateral owned by it
pursuant to the RC Security Documents shall have been obtained (it being
understood that this condition shall not fail to be met as a result of
the inability to subject to the Liens of the RC Security Documents any asset
subject to a Capital Lease or to the Lien of any purchase money Indebtedness
that existed at the time such Person became a Subsidiary and was not created in
contemplation of or in connection with such Person becoming a Subsidiary),
(e) Level 3 and the Subsidiaries are in compliance, on a pro forma basis after
giving effect to such acquisition (without giving effect to operating expense
reductions), with the financial covenants contained in Section 6.14, to the
extent then applicable, as if such acquisition had occurred on the first day of
the relevant period for testing compliance, and (f) Level 3 has delivered to the
Agent an officer's certificate to the effect set forth in clauses (a), (b), (c),
(d) and (e) above, together with all relevant financial information for the
Person or assets acquired and reasonably detailed calculations demonstrating
satisfaction of the requirement set forth in clause (e) above. For the avoidance
of doubt, an acquired Person or business shall be deemed to be "predominately
engaged in one or more Telecommunications Businesses in the United States of
America" if more than 66-2/3% of the consolidated revenues of such Person or
business are contributed by the Telecommunications Businesses of Persons who
will upon acquisition become Subsidiary Loan Parties and satisfy the
requirements of clause (d) above.
"Permitted Debt" means unsecured senior or subordinated Indebtedness of
Level 3 that is not (i) Guaranteed by any Restricted Subsidiary or
(ii) convertible into or exchangeable for any Indebtedness (other than Permitted
Debt) of Level 3 or any Restricted Subsidiary or any Equity Interests of any
Restricted Subsidiary.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) other liens incidental to the conduct of business or the ownership
of property which do not in the aggregate materially detract from the value
of Level 3's and its Restricted Subsidiaries' property when taken as a
whole, or materially impair the use thereof in the operation of its
business; and
(g) any interest or title of a lessor in the property subject to any
lease other than a Capital Lease or a lease entered into as part of a sale
and leaseback transaction subject to Section 6.04;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Holders" means the members of Level 3's board of directors on
the date hereof and their respective estates, spouses, ancestors, and lineal
descendants, the legal representatives of any of the foregoing and the trustees
of any bona fide trusts of which the foregoing are the sole beneficiaries or the
grantors, or any Person of which the foregoing "beneficially owns" (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934) at least 66 2/3% of
the total voting power of the voting stock of such Person.
"Permitted Investments" means:
(a) Government Securities maturing, or subject to tender at the option
of the holder thereof, within two years after the date of acquisition
thereof;
(b) time deposits and certificates of deposit of any commercial bank
organized in the United States having capital and surplus in excess of $500
million or a commercial bank organized under the law of any other country
that is a member of the OECD having total assets in excess of $500 million
(or its foreign currency equivalent at the time) with a maturity date not
more than one year from the date of acquisition;
(c) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (a) above entered
into with (x) any bank meeting the qualifications specified in clause (b)
above or (y) any primary government securities dealer reporting to the
Market Reports Division of the Federal Reserve Bank of New York;
(d) direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing, or subject to tender at the option of the
holder thereof, within 90 days after the date of acquisition thereof,
provided that, at the time of acquisition, the long-term debt of such
state, political subdivision or public instrumentality has a rating of A
(or higher) from S&P or A-2 (or higher) from Moody's (or, if at any time
neither S&P nor Moody's shall be rating such obligations, then an
equivalent rating from such other nationally recognized rating service
acceptable to the Administrative Agent);
(e) commercial paper issued by the parent corporation of any
commercial bank organized in the Untied States having capital and surplus
in excess of $500 million or a commercial bank organized under the laws of
any other country that is a member of the OECD having total assets in
excess of $500 million (or its foreign currency equivalent at the time),
and commercial paper issued by others having a rating of A-2 or higher from
S&P or a rating of P-2 or higher from Moody's (or, if at any time neither
S&P nor Moody's shall be rating such obligations, then equivalent ratings
from such other nationally recognized rating services acceptable to the
Administrative Agent) and in each case maturing within one year after the
date of acquisition;
(f) overnight bank deposits and bankers' acceptances at any commercial
bank organized in the United States having capital and surplus in excess of
$500 million or a commercial bank organized under the laws of any other
country that is a member of the OECD having total assets in excess of $500
million (or its foreign currency equivalent at the time);
(g) deposits available for withdrawal on demand with a commercial bank
organized in the United States having capital and surplus in excess of $500
million or a commercial bank organized under the laws of any other country
that is a member of the OECD having total assets in excess of $500 million)
or its foreign currency equivalent at the time); and
(h) investments in money market funds substantially all of whose
assets comprise securities of the types described in clauses (a) through
(g).
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"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 Level 3 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.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset (including,
without limitation, sales of Capital Stock of Unrestricted Subsidiaries) of
Level 3 or any Restricted Subsidiary, other than dispositions described in
clauses (a), (b) and (c) of Section 6.06, but only to the extent the Net
Proceeds therefrom have not been reinvested by Level 3 or a Restricted
Subsidiary in Telecommunications Assets within one year (or 540 days in the
case of Net Proceeds from sales of Special Assets) after the date on which
such Net Proceeds were received; or
(b) 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 Level 3 or any Restricted Subsidiary, but only to the extent
that the Net Proceeds therefrom have not been applied to (i) repair,
restore or replace such property or asset or (ii) purchase
Telecommunications Assets within one year after the date on which such Net
Proceeds were received.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
"Pro Forma Fixed Charge Ratio" means, as of any date, the lower of the
Fixed Charge Ratios for the four-fiscal-quarter trailing periods ending on the
last days of each of the two most recent fiscal quarters for which financial
statements shall have been required to be delivered under Section 5.01(a) or
(b), determined as if all the Indebtedness of Level 3 and the Subsidiaries
outstanding (or the subject of a Borrowing Request outstanding) on the date of
determination had been outstanding on each day of such periods. In the event
that any applicable financial statements required to have been delivered on or
prior to any date of determination shall not have been delivered, the Pro Forma
Fixed Charge Ratio shall be deemed to be zero until such time as such financial
statements are delivered and, following delivery of such financial statements,
the Pro Forma Fixed Charge Ratio shall be determined for the applicable periods
without regard to this sentence.
"RC Borrower" means each of Level 3 Communications, LLC, Level 3
International Services, Inc. and Level 3 International, Inc., each of which is a
Wholly Owned Subsidiary of Level 3.
"RC Guarantee Agreement" means the RC Guarantee Agreement among Level 3,
each Subsidiary Loan Party (other than the Equipment Borrowers and the RC
Borrowers) and the Administrative Agent, substantially in the form of Exhibit D.
"RC Guarantors" means the parties to the RC Guarantee Agreement other than
the Administrative Agent.
"RC Indemnity, Subrogation and Contribution Agreement" means the RC
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit I, among the RC Borrowers and the RC Guarantors.
"RC Obligations" has the meaning assigned to such term in the Shared
Collateral Security Agreement.
"RC Secured Parties" has the meaning assigned to such term in the Shared
Collateral Security Agreement.
"Redesignated Colocation Subsidiary" means any Colocation Subsidiary
previously designated as an Unrestricted Subsidiary that has been designated as
a Restricted Subsidiary pursuant to Section 6.13(d).
"Register" has the meaning assigned to such term in Section 9.04.
"Related Fund" means with respect to any Lender that is a fund that invests
in bank loans in the ordinary course of business, any other fund that invests in
bank loans in the ordinary course of business and is advised or managed by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the directors, officers, employees, agents, trustees,
partners, members and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time (a) Lenders (including any Additional
Lenders that are vendors of telecommunications equipment or Affiliates thereof
(collectively, "Vendor Lenders") having Revolving Exposures, Term Loans,
Incremental Loans and unused Commitments representing more than 50.0% of the sum
of the total Revolving Exposures,
outstanding Term Loans, outstanding Incremental Loans and unused Commitments at
such time, and (b) if any Additional Lenders are Vendor Lenders and the amount
of outstanding Term Loans, outstanding Incremental Loans and unused commitments
of such Vendor Lenders exceeds $500,000,000 in the aggregate, Lenders other than
Vendor Lenders having Revolving Exposures, outstanding Term Loans, outstanding
Incremental Loans and unused commitments representing more than 50.0% of the sum
of the total Revolving Exposures, outstanding Term Loans, Incremental Loans and
unused commitments held by all Lenders other than Vendor Lenders.
"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 or other Equity Interests of Level 3, the Borrowers or any
Restricted Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancelation or termination of any
such shares of capital stock or other Equity Interests of Level 3 or any
Restricted Subsidiary or any option, warrant or other right to acquire any such
shares of capital stock or other Equity Interests of Level 3 or any Restricted
Subsidiary, provided that no such dividend, distribution or payment shall
constitute a "Restricted Payment" to the extent made solely with common stock of
Level 3 or (except in the case of dividends, distributions or payments in
respect of the common stock of Level 3) preferred stock of Level 3, or (b) any
payment to any Derivatives Counterparty as a result of any change in the market
value of any class of capital stock or other Equity Interests of Level 3, the
Borrowers or any Restricted Subsidiary that is publicly traded (provided, that
(i) payments shall be deemed to have been made to Derivatives Counterparties
only to the extent the cumulative amount of such payments exceeds the cumulative
amount of any payments received by Level 3 and the Restricted Subsidiaries from
Derivatives Counterparties as a result of changes in the market value of such
publicly traded capital stock or other Equity Interests and (ii) it is
understood that the intent of the above language relating to payments to and
from Derivatives Counterparties is to treat transactions entered into with
Derivatives Counterparties as Restricted Payments only if Level 3 intends such
transactions to have substantially the same economic effect as the dividends,
distributions and payments referred to in clause (a) above).
"Restricted Subsidiary" means (i) each Borrower and each other Subsidiary
of Level 3 on the Amendment Effectiveness Date that is not listed on
Schedule 6.13 and (ii) each Subsidiary of Level 3 organized or acquired after
the Amendment Effectiveness Date (x) that is engaged to any significant extent
in a Telecommunications Business in the United States (other than a Colocation
Subsidiary designated as an Unrestricted Subsidiary pursuant to Section 6.13) or
owns Capital Stock of any Person so engaged or (y) that has not been designated
an Unrestricted Subsidiary in accordance with the provisions of Section 6.13.
Finance shall not at any time be a Restricted Subsidiary.
"Revolving Availability Period" means the period from and including
December 8, 1999, to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 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 Revolving Commitment was set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The amount of each Lender's Revolving
Commitment as of the Amendment Effectiveness Date is set forth on Schedule
2.01A. The aggregate amount of the Lenders' Revolving Commitments as of the
Amendment Effectiveness Date is $150,000,000. "Revolving Exposure" means, with
respect to any Lender at any time, the sum of the outstanding principal amount
of such Lender's Revolving Loans and its LC Exposure and Swingline Exposure at
such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if the
Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to the second sentence of
Section 2.01.
"Revolving Maturity Date" means the date that is eight years after the date
hereof.
"Security Agreements" means the Shared Collateral Security Agreement and
the Term Loan Security Agreement.
"Security Documents" means the Shared Collateral Security Documents, the
RC Guarantee Agreements and the Term Loan Security Documents. The Security
Documents do not include any document delivered by Finance in satisfaction of
the conditions precedent set forth in the Amendment Agreement or entered into by
Finance pursuant to any document so delivered.
"SFAS 144" means Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 144, Accounting for the Impairment or
Disposal of Long Lived Assets.
"Shared Collateral" means any and all "Collateral", as defined in any
applicable Shared Collateral Security Document.
"Shared Collateral Pledge Agreement" means the Pledge Agreement,
substantially in the form of Exhibit F, among Level 3, the Subsidiary Loan
Parties (other than the Equipment Borrowers) and the Collateral Agent for the
benefit of the Shared Collateral Secured Parties.
"Shared Collateral Secured Obligations" shall mean, at any date, (a) the RC
Obligations, (b) an aggregate principal amount of Term Loan Obligations equal to
(i) $750,000,000 minus (ii) the amount of Shared Collateral proceeds applied to
the principal amount of the RC Obligations on or prior to such date minus
(iii) the aggregate amount of the Lenders' Revolving Exposure on such date,
(c) all obligations of BTE and the Term Loan Guarantors in respect of interest,
fees, indemnities, cost reimbursements and similar amounts directly attributable
to the principal amount of Term Loan Obligations referred to in clause (b) above
and (d) all obligations of the Loan Parties under the Shared Collateral Security
Documents, including obligations in respect of, and all rights of the Collateral
Agent and the Administrative Agent to receive payment or reimbursement of costs,
expenses or other amounts incurred or expended by the Collateral Agent or the
Administrative Agent (in its capacity as such) under any Shared Collateral
Security Document. The principal amount of Term Loan Obligations referred to in
clause (b) above shall, on any date, consist of pro rata amounts of Tranche A
Term Loans, Tranche B Term Loans, and Tranche C Term Loans made to BTE
determined on the basis of the relative aggregate outstanding principal amounts
thereof on such date. Notwithstanding the foregoing, after the occurrence of an
Event of Default and the exercise of remedies in respect of the Shared
Collateral in accordance with the Shared Collateral Security Documents, the
principal amount of Term Loan Obligations included in the Shared Collateral
Secured Obligations pursuant to the foregoing shall be reduced by the principal
amount of Term Loans indefeasibly paid in full with the proceeds of Shared
Collateral and, upon payment of the principal amount of Term Loans with the
proceeds of Shared Collateral, no principal amounts of Term Loans not
theretofore included in Shared Collateral Secured Obligations shall as a result
thereof be included in the Shared Collateral Secured Obligations.
"Shared Collateral Secured Parties" has the meaning assigned to such term
in the Shared Collateral Security Agreement.
"Shared Collateral Security Agreement" means the Security Agreement,
substantially in the form of Exhibit G, among Level 3, the Subsidiary Loan
Parties (other than the Equipment Borrowers) and the Collateral Agent for the
benefit of the Shared Collateral Secured Parties.
"Shared Collateral Security Documents" means the Shared Collateral Security
Agreement, the Shared Collateral Pledge Agreement, the security agreement
executed by Whitney pursuant to Section 4.02(h) and any Mortgages, other
security agreements or other instruments or documents executed and delivered
pursuant to Section 4.02(h), 5.12 or 5.13 to secure any of the Shared Collateral
Secured Obligations.
"Significant Subsidiary" means a Restricted Subsidiary, or any group of
Restricted Subsidiaries, collectively, that would constitute a "Significant
Subsidiary" of Level 3 within the meaning of Rule 1-02 under Regulation S-X
promulgated by the Securities and Exchange Commission as in effect on the date
hereof.
"Special Assets" means (a) the Capital Stock or assets of RCN Corporation,
Commonwealth Telephone Enterprises, Inc., KCP, Inc. and California Private
Transportation Company, L.P. (and any intermediate holding companies or other
entities formed solely for the purpose of owning, and having no operations or
assets other than, such Capital Stock or assets) owned, directly or indirectly,
by Level 3 or any Restricted Subsidiary on the date hereof, and (b) any
property, other than cash, cash equivalents and Telecommunications Assets,
received as consideration for the disposition after the date hereof of Special
Assets.
"Special Asset Gains" means the amount of after-tax gains realized by
Level 3 and the Restricted Subsidiaries from (i) the sale or disposition of
Special Assets or (ii) the issuance of equity-linked securities relating solely
to Special Assets in transactions equivalent in all material respects to sales
of such Special Assets (including the absence of significant ongoing
liabilities, other than regularly scheduled interest or dividend payment
obligations, not payable in full by transfer of the Special Assets subject to
such transactions). For purposes of the foregoing, a qualifying issuance of
equity-linked securities referred to in clause (ii) above will be treated as a
sale (including for purposes of calculating taxes) of the underlying Special
Assets on the date of issuance of such securities for consideration equal to the
consideration paid for such securities by the purchasers thereof.
"Specified Real Estate" means the real estate located at 85 Tenth Avenue,
New York, New York, and at 1025 Eldorado Boulevard, Broomfield, Colorado (the
"Eldorado Property") and the real estate in Broomfield, Colorado located
adjacent to the Eldorado Property that Level 3 intends to use as an expansion of
the headquarters facilities of the Borrowers.
"subsidiary" means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
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.
"Subsidiary" means any direct or indirect subsidiary of Level 3.
"Subsidiary Loan Party" means any direct or indirect Wholly Owned
Subsidiary of Level 3 that is not a Foreign Subsidiary or an Unrestricted
Subsidiary.
"Swingline Exposure" means, at any time, the aggregate principal amount of
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, in its capacity as lender of
Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Syndication Agent" means each of J.P. Morgan Securities Inc., Goldman
Sachs Credit Partners L.P. and Salomon Smith Barney Inc., each in its capacity
as syndication agent hereunder.
"Synergy Site" means real estate (other than Specified Real Estate or the
London Properties) now or hereafter owned by Level 3 or a Restricted Subsidiary
and located in a city identified in the letter from Level 3 dated the date
hereof delivered to the Administrative Agent or any update of such letter (such
letter shall be promptly updated by Level 3 to include any real estate
designated as a Synergy Site by Level 3 in the future and redelivered to the
Administrative Agent), including any Telecom Equipment Assets located at,
incorporated in, or attached to such real estate (including fixtures), with a
fair market value in excess of $500,000.
"S&P" means Standard & Poor's Ratings Services, a division of the McGraw
Hill Companies.
"Taxes" means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
"Telecom Building Fixtures" means telecommunications equipment consisting
of fixtures located in a building which are integral to the customary operation
of the building as such for its intended use.
"Telecom Equipment Assets" means telecommunications equipment, including
fixtures, that is utilized in and integral to the communications networks owned
or operated by Level 3 and the Restricted Subsidiaries in connection with their
conduct of a Telecommunications Business but shall not include Telecom Building
Fixtures.
"Telecommunications Assets" means (a) any property (other than cash, cash
equivalents and securities) to be owned by Level 3 or any Restricted Subsidiary
and used in a Telecommunications Business and (b) Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by Level 3 or another Restricted Subsidiary from any person other than an
Affiliate of Level 3; provided, however, that, in the case of clause (b), such
Person is primarily engaged in the Telecommunications Business.
"Telecommunications Business" means the business of (i) transmitting, or
providing services relating to the transmission of, voice, video or data through
owned or leased transmission facilities, (ii) constructing, creating, developing
or marketing communications networks, related network transmission equipment,
software and other devices for use in a communications business, (iii) computer
outsourcing, data center management, computer systems integration, reengineering
of computer software for any purpose (including, without limitation, for the
purposes of porting computer software from one operating environment or computer
platform to another or to address issues commonly referred to as "Year 2000
issues") or (iv) evaluating, participating or pursuing any other activity or
opportunity that is primarily related to those identified in (i), (ii) or (iii)
above; provided, that the determination of what constitutes a Telecommunications
Business shall be made in good faith by the board of directors of Level 3.
"Term Loan Guarantee Agreement" means the Term Loan Guarantee Agreement
among Level 3, each Subsidiary Loan Party (other than the Equipment Borrowers)
and the Administrative Agent, substantially in the form of Exhibit E.
"Term Loan Guarantors" means the parties to the Term Loan Guarantee
Agreement other than the Administrative Agent.
"Term Loan Indemnity, Subrogation and Contribution Agreement" means the
Term Loan Indemnity, Subrogation and Contribution Agreement, substantially in
the form of Exhibit J, among BTE and the Term Loan Guarantors.
"Term Loan Obligations" has the meaning assigned to such term in the Term
Loan Security Agreement.
"Term Loan Secured Parties" has the meaning assigned to such term in the
Term Loan Security Agreement.
"Term Loan Security Agreement" means the Security Agreement, substantially
in the form of Exhibit H, among BTE and the Administrative Agent for the benefit
of the Term Loan Secured Parties.
"Term Loan Security Documents" means the Term Loan Security Agreement, the
Term Loan Guarantee Agreement, the Term Loan Indemnity, Subrogation and
Contribution Agreement and any Mortgage or other instrument or document executed
and delivered pursuant to Section 5.12 or 5.13 to secure any of the Term Loan
Obligations (but not any of the RC Obligations).
"Term Loans" means Tranche A Term Loans, Tranche B Term Loans and Tranche C
Term Loans.
"Third Amendment" means the Third Amendment dated as of March 19, 2001 to
this Agreement, among the Borrower, the Lenders party thereto and the
Administrative Agent.
"Third Amendment Effective Date" means the date as of which the Third
Amendment became effective in accordance with its terms.
"Toll Road Business" means the California toll road business as generally
conducted on the Amendment Effectiveness Date by 91 Holding Corp. (f/k/a Kiewit
Infrastructure Corp.), SR91 Corp., SR91 LP, Express Lane Inc., California
Private Transportation Company L.P. and CPTC, LLC, and following the Amendment
Effectiveness Date will mean such business whether conducted in such Persons or
in subsidiaries thereof or successors thereto.
"Tranche A Commitment" means, with respect to each Lender, the commitment,
if any, pursuant to which it made Tranche A Term Loans. The initial amount of
each Lender's Tranche A Commitment was set forth on Schedule 2.01, or in the
Assignment
and Acceptance pursuant to which such Lender assumed its Tranche A Commitment,
as applicable. The initial aggregate amount of the Lenders' Tranche A
Commitments was $450,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means the date that is eight years from the date
hereof.
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
Section 2.01 (as such clause (a) was in effect immediately prior to the
Amendment Effectiveness Date).
"Tranche B Commitment" means, with respect to each Lender, the commitment,
if any, pursuant to which it made Tranche B Term Loans. The initial amount of
each Lender's Tranche B Commitment was set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Tranche B
Commitment, as applicable. The initial aggregate amount of the Lenders' Tranche
B Commitments was $275,000,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment or an
outstanding Tranche B Term Loan.
"Tranche B Maturity Date" means January 15, 2008.
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of
Section 2.01 (as such clause (b) was in effect immediately prior to the
Amendment Effectiveness Date).
"Tranche C Commitment" means, with respect to each Lender, the commitment,
if any, pursuant to which it made Tranche C Term Loans. The initial amount of
each Lender's Tranche C Commitment was set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Tranche C
Commitment, as applicable. The initial aggregate amount of the Lenders'
Tranche C Commitments was $400,000,000.
"Tranche C Lender" means a Lender with a Tranche C Commitment or an
outstanding Tranche C Term Loan.
"Tranche C Maturity Date" means January 30, 2008.
"Tranche C Term Loan" means a Loan made pursuant to clause (c) of
Section 2.01 (as such clause (c) was in effect immediately prior to the
Amendment Effectiveness Date).
"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.
"Unrestricted Subordinated Debt" means Indebtedness owed by Level 3 or a
Restricted Subsidiary to an Unrestricted Subsidiary (but only for so long as
such Indebtedness remains owed to and held by an Unrestricted Subsidiary)
provided that such Indebtedness is subordinated to the Obligations on terms and
conditions acceptable to the Administrative Agent.
"Unrestricted Subsidiary" means any Subsidiary of Level 3 that is not
engaged in the United States in, and does not own Capital Stock in any Person
(other than RCN Corporation, Commonwealth Telephone Enterprises, Inc. or any
Colocation Subsidiary designated as an Unrestricted Subsidiary) engaged in the
United States in any Telecommunications Business and (i) is listed on
Schedule 6.13 or (ii) has been designated as an Unrestricted Subsidiary by
Level 3 pursuant to and in compliance with Section 6.13; provided, however, that
(i) a Colocation Subsidiary may be designated as an Unrestricted Subsidiary and
(ii) none of the following shall be an Unrestricted Subsidiary: any Borrower,
PKS Information Services, Inc. ("PKS"), Level 3 Communications LLC, Equipment
Co. II, XCOM Technologies, Inc., GeoNet Communications, Inc., Level 3
International Services, Inc., Level 3 Communications Canada Co., Level 3
International, Inc., the subsidiaries of all the foregoing (except PKS) and any
subsequently acquired or organized subsidiary of Level 3 (other than a
Colocation Subsidiary) engaged in any Telecommunications Businesses in the
United States. Finance shall at all times remain an Unrestricted Subsidiary. No
Unrestricted Subsidiary may own any Capital Stock of a Restricted Subsidiary.
"Whitney" shall have the meaning assigned thereto in Section 6.05(g).
"Wholly Owned subsidiary" of any Person shall mean a subsidiary of such
Person of which securities or other ownership interests (except for directors'
qualifying shares and other de minimis amounts of outstanding securities or
ownership interests) representing 100% of the ordinary voting power and 100% of
equity or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such
Person or one or more Wholly Owned subsidiaries of such Person or by such Person
and one or more Wholly Owned subsidiaries of such Person.
"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 "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving 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 meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. (a) 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 Level 3 notifies the Administrative Agent that Level 3 requests an amendment
to any provision hereof to eliminate the effect of any change occurring after
the Amendment Effectiveness Date in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies Level 3
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.
(b) Notwithstanding any other provision hereof, the assets, liabilities,
revenues, costs, expenses, charges and gains directly attributable to the Toll
Road Business shall be excluded for all purposes hereof in the preparation of
combined financial statements for Level 3 and the Subsidiaries. Any reference
herein to GAAP shall be deemed to refer to GAAP as modified by the foregoing
procedures. Accordingly, compliance with the requirements of Section 5.01 and
compliance or noncompliance with the requirements of Section 4.01(c) and the
financial covenants in Article VI will be based on combined financial statements
prepared to exclude the Toll Road Business in accordance with the foregoing. For
purposes of this Agreement, any investment in or loan or advance to the Toll
Road Business after the Amendment Effectiveness Date funded other than out of
the cash flows attributable to such business will be treated as and deemed to be
an Investment in an Unrestricted Subsidiary.
ARTICLE II
The Credits
SECTION 2.01. Commitments. The Lenders made (a) the Tranche A Term Loans to
BTE pursuant to the Tranche A Commitments, (b) the Tranche B Term Loans to BTE
pursuant to the Tranche B Commitments and (c) the Tranche C Term Loans to BTE
pursuant to the Tranche C Commitments. Subject to the terms and conditions set
forth herein (including, without limitation, those set forth in Section 4.01
hereof), each Lender agrees to make Revolving Loans to the RC Borrowers from
time to time during the Revolving Availability Period in an aggregate principal
amount that will not result in such Lender's Revolving Exposure exceeding such
Lender's Revolving Commitment. The obligations of the RC Borrowers under the
Revolving Facility will be on a joint and several basis. Within the foregoing
limits and subject to the terms and conditions set forth herein, the RC
Borrowers may borrow, prepay and reborrow Revolving Loans. Amounts repaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a Swingline
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 of the applicable Class. 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 2.14, each Revolving Borrowing and Term Borrowing
shall be comprised entirely of ABR Loans or Eurodollar Loans as the Borrowers
may request in accordance herewith. Each Swingline Loan shall be an ABR Loan.
Each Lender at its option may make any Eurodollar 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 Borrowers to
repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $10,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $10,000,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e). Each Swingline Loan shall be in an amount that is an integral
multiple of $1,000,000. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be more
than a total of 20 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrowers
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date, Tranche A Maturity Date, Tranche B Maturity Date or
Tranche C Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving Borrowing or
Term Borrowing, a Borrower (or Level 3 on behalf of a Borrower) shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 1:00 p.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 1:00 p.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that any such notice of an
ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed 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 applicable Borrower (or
by Level 3 on its behalf).
Each such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing,
Tranche A Term Borrowing or Tranche B Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vi) the relevant Borrower and the location and number of the
Borrower's account to which funds are to be disbursed, which shall comply
with the requirements of Section 2.06.
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 Eurodollar Revolving Borrowing, then the applicable
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. The Tranche C Lenders shall make the Tranche C Term Loan to
BTE on March 28, 2001 (or such earlier date as BTE may request and the
Administrative Agent, in its sole discretion, may approve) as an ABR Borrowing
and shall deposit the proceeds thereof to the account of BTE at Milestone
Capital.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the RC
Borrowers from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$50,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein
(including those set forth in Section 4.01(c)), the RC Borrowers may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, an RC Borrower (or Level 3 on its behalf)
shall notify the Administrative Agent of such request by telephone (confirmed by
telecopy), not later than 12:00 noon, New York City time, on the day of a
proposed Swingline Loan. Each such notice shall be irrevocable and shall specify
the requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from an RC Borrower. The Swingline Lender
shall make each Swingline Loan available to the requesting Borrower by means of
a credit to the general deposit account of such Borrower with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 2.06(e), by remittance to the Issuing
Bank) by 3:00 p.m., New York City time, on the requested date of such Swingline
Loan.
(c) The Swingline Lender may by written notice given to the Administrative
Agent not later than 10:00 a.m., New York City time, on any Business Day require
the Revolving Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Revolving Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice
thereof to each Revolving Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Revolving Lender
hereby absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to the Administrative Agent, for the account of the Swingline
Lender, such Lender's Applicable Percentage of such Swingline Loan or Loans.
Each Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever. Each Revolving
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. The Administrative Agent shall notify
the relevant Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from an RC Borrower (or other party
on behalf of such Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations
therein shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve any RC Borrower of any default in
the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, each of the RC Borrowers may request the issuance
of Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by an
RC Borrower to, or entered into by an RC Borrower with, the Issuing Bank
relating to any Letter of Credit, the terms and conditions of this Agreement
shall control. Such terms and conditions of any such application or other
agreement shall not, in any event, contain any operating covenants or
restrictions, provide for any collateral not provided under the Loan Documents
or Finance Documents or provide for the imposition of any fees (other than
customary charges).
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), an RC Borrower (or Level 3 on its
behalf) shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the
Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the applicable Borrower also shall submit a letter of credit application on the
Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
RC Borrowers shall be deemed to represent and warrant that), after giving effect
to such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $50,000,000 and (ii) the total Revolving Exposures shall not exceed the
total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to the
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an amendment
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Revolving Lender, and each Revolving Lender hereby acquires from
the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the RC Borrowers on the date due as provided in paragraph
(e) of this Section, or of any reimbursement payment required to be refunded to
the Borrowers for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the RC Borrowers shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the relevant Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such
date, or, if such notice has not been received by the relevant Borrower prior to
such time on such date, then not later than 12:00 noon, New York City time, on
(i) the Business Day that such Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that such Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that, if such LC Disbursement is not less than $10,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein (including
those set forth in Section 4.01(c)), request in accordance with Section 2.03 or
2.04 that such payment be financed with an ABR Revolving Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, such Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan. If such Borrower fails to
make such payment when due, the Administrative Agent shall notify each Revolving
Lender of the applicable LC Disbursement, the amount of the
unreimbursed LC Disbursement and such Lender's Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Lender shall pay to
the Administrative Agent its Applicable Percentage of the unreimbursed LC
Disbursement, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to
the payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of any
payment from a Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of
ABR Revolving Loans or a Swingline Loan as contemplated above) shall not
constitute a Loan and shall not relieve the RC Borrowers of their obligation to
reimburse such LC Disbursement.
(f) Obligations Absolute. The RC Borrowers' obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the RC Borrowers' obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the RC Borrowers to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the RC Borrowers to the extent permitted by applicable law)
suffered by the RC Borrowers that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the relevant Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve such Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the RC Borrowers shall reimburse such LC Disbursement in full on
the date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the RC Borrowers reimburse such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans; provided that, if
the RC Borrowers fail to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.14(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Revolving
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among Level 3, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the RC Borrowers shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.14(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that Level 3 receives notice from the
Administrative Agent upon the instructions of the Required Lenders (or, if the
maturity of the Loans has been accelerated, Revolving Lenders with LC Exposures
representing greater than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the RC Borrowers shall deposit in an
account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure
as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to Level 3 or any RC Borrower described in clause (h) or (i) of
Article VII. Each such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the RC
Borrowers under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits in
readily marketable Permitted Investments maturing in not more than 60 days,
which Permitted Investments shall be made at the direction of Level 3 and at the
RC Borrowers' risk and expense, such deposits shall not bear interest. Interest
or profits, if any, on such investments shall accumulate in such account. Moneys
in such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the RC Borrowers for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Lenders with LC Exposure representing greater than 50% of
the total LC Exposure), be applied to satisfy other obligations of the Borrowers
(including BTE) under this Agreement. If an RC Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an Event
of Default, such amount (to the extent not applied as aforesaid) shall be
returned to the RC Borrower within three Business Days after all Events of
Default have been cured or waived.
SECTION 2.06. 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;
provided that Swingline Loans shall be made as provided in Section 2.04. The
Administrative Agent will make such Loans available to the appropriate Borrower
by promptly (but in no event later than 2:00 p.m., New York City time) crediting
the amounts so received, in like funds, to an account of such Borrower
maintained with the Administrative Agent in New York City and designated in the
applicable Borrowing Request; provided that ABR Revolving Loans made to finance
the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
(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 appropriate
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 relevant 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 such 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 such Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to the Administrative Agent, then such amount shall
constitute such Lender's Loan included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, a Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrowers 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 comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the applicable Borrower
(or Level 3 on its behalf) 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 Revolving 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
applicable Borrower (or Level 3 on its behalf).
(c) Each telephonic and written Interest Election Request shall specify the
following information in compliance with Section 2.02:
(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 an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar 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 Eurodollar Borrowing but does
not specify an Interest Period, then the requesting 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 a Borrower fails to deliver a timely Interest Election Request with
respect to a Eurodollar 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 and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrowers, then, so long as an Event of
Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar
Borrowing (except for a Eurodollar Borrowing with an Interest Period of one
month) and (ii) unless repaid, each Eurodollar Borrowing shall be either
(x) converted to an ABR Borrowing or (y) continued as a Eurodollar Borrowing
with an Interest Period of one month at the end of the Interest Period
applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Revolving Commitments shall terminate on the
Revolving Maturity Date.
(b) Level 3 may at any time terminate, or from time to time reduce, the
Commitments of any Class; provided that (i) each reduction of the Commitments of
any Class shall be in an amount that is an integral multiple of $1,000,000 and
not less than $10,000,000, (ii) the Revolving Commitments may not be terminated
or reduced unless all Term Loans have been paid in full and all commitments to
make Term Loans have expired or been terminated and (iii) Level 3 shall not
terminate or reduce the Revolving Commitments if, after giving effect to any
concurrent prepayment of the Revolving Loans in accordance with Section 2.11,
the sum of the Revolving Exposures would exceed the total Revolving Commitments.
(c) Level 3 shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at least
three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by Level 3 pursuant to
this Section shall be irrevocable; provided that a notice of termination of the
Revolving Commitments delivered by Level 3 may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by Level 3 (by notice to the Administrative Agent on
or prior to the specified effective date) if such condition is not satisfied.
Any termination or reduction of the Commitments of any Class shall be permanent.
Each reduction of the Commitments of any Class shall be made ratably among the
Lenders in accordance with their respective Commitments of such Class.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The RC Borrowers
hereby jointly and severally unconditionally promise to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan of such Lender on the Revolving Maturity Date,
(ii) to the Administrative Agent for the account of each Lender the then unpaid
principal amount of each Term Loan of such Lender as provided in Section 2.10
and (iii) to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on the earlier of the Revolving Maturity Date and the first date
after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least five Business Days after such Swingline Loan is made;
provided that on each date that a Revolving
Borrowing is made, the Borrower shall repay all Swingline Loans that were
outstanding on the date such Borrowing was requested.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The 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 Borrowers 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 any 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 relevant Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) 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). Any such notes will be in the forms required hereunder
immediately prior to the amendment and restatement hereof on the Amendment
Effectiveness Date.
SECTION 2.10. Automatic Revolving Commitment Reductions; Amortization of
Term Loans. (a) The aggregate amount of the Lenders' Revolving Commitments shall
automatically and permanently reduce in 10 consecutive quarterly reductions
commencing on March 31, 2005 and an eleventh and final reduction on the
Revolving Maturity Date, in each case in the amount set forth opposite such
reduction below:
Reduction Amount
March 31, 2005 $7,000,000
June 30, 2005 $7,000,000
September 30, 2005 $7,000,000
December 31, 2005 $7,750,000
March 31, 2006 $7,750,000
June 30, 2006 $7,750,000
September 30, 2006 $7,750,000
December 31, 2006 $11,250,000
March 31, 2007 $11,250,000
June 30, 2007 $25,500,000
Revolving Maturity Date $50,000,000
(b) Any reduction of the Revolving Commitments (other than those pursuant
to paragraph (a)) shall be applied to reduce the subsequent scheduled reductions
of the Revolving Commitments to be made pursuant to this Section ratably.
(c) Subject to adjustment pursuant to paragraph (g) of this Section, BTE
shall repay Tranche A Term Borrowings in 14 consecutive payments commencing on
March 31, 2004 and a fifteenth and final payment in the Tranche A Maturity Date
in the aggregate principal amount set forth opposite such payment below:
Payment Amount
March 31, 2004 $ 9,000,000
June 30, 2004 $ 9,000,000
September 30, 2004 $ 9,000,000
December 31, 2004 $ 9,000,000
March 31, 2005 $28,125,000
June 30, 2005 $28,125,000
Payment Amount
September 30, 2005 $28,125,000
December 31, 2005 $28,125,000
March 31, 2006 $33,750,000
June 30, 2006 $33,750,000
September 30, 2006 $33,750,000
December 31, 2006 $33,750,000
March 31, 2007 $54,000,000
June 30, 2007 $54,000,000
Tranche A Maturity Date $58,500,000
(d) Subject to adjustment pursuant to paragraph (g) of this Section, BTE
shall repay Tranche B Term Borrowings in 15 consecutive quarterly payments
commencing on March 31, 2004 and a sixteenth and final payment on the Tranche B
Maturity Date in the aggregate principal amount set forth opposite such date:
Payment Amount
March 31, 2004 $ 687,500
June 30, 2004 $ 687,500
September 30, 2004 $ 687,500
December 31, 2004 $ 687,500
March 31, 2005 $ 687,500
June 30, 2005 $ 687,500
September 30, 2005 $ 687,500
December 31, 2005 $ 687,500
March 31, 2006 $ 687,500
June 30, 2006 $ 687,500
Payment Amount
September 30, 2006 $ 687,500
December 31, 2006 $ 687,500
March 31, 2007 $66,687,500
June 30, 2007 $66,687,500
September 30, 2007 $66,687,500
January 15, 2008 $66,687,500
(e) BTE shall repay Tranche C Term Borrowings in 15 consecutive quarterly
payments commencing on March 31, 2004 and a sixteenth and final payment on the
Tranche C Maturity Date in the aggregate principal amount set forth opposite
such date:
Payment Amount
March 31, 2004 $ 1,000,000
June 30, 2004 $ 1,000,000
September 30, 2004 $ 1,000,000
December 31, 2004 $ 1,000,000
March 31, 2005 $ 1,000,000
June 30, 2005 $ 1,000,000
September 30, 2005 $ 1,000,000
December 31, 2005 $ 1,000,000
March 31, 2006 $ 1,000,000
June 30, 2006 $ 1,000,000
September 30, 2006 $ 1,000,000
December 31, 2006 $ 1,000,000
March 31, 2007 $97,000,000
Payment Amount
June 30, 2007 $97,000,000
September 30, 2007 $97,000,000
January 30, 2008 $97,000,000
(f) To the extent not previously paid, (i) all Tranche A Term Loans shall
be due and payable on the Tranche A Maturity Date, (ii) all Tranche B Term Loans
shall be due and payable on the Tranche B Maturity Date and (iii) all Tranche C
Term Loans shall be due and payable on the Tranche C Maturity Date.
(g) Any prepayment of a Term Borrowing of any Class shall be applied to
reduce the subsequent scheduled repayments of the Term Borrowings of such Class
to be made pursuant to this Section ratably, other than prepayments of Term
Borrowings under Section 2.11(b)(ii) which shall be applied to reduce the
subsequent scheduled repayments of the affected Term Borrowings to made pursuant
to this Section in the direct order of maturity.
(h) Prior to any repayment of any Term Borrowings of any Class hereunder,
the relevant Borrowers shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 1:00 p.m.,
New York City time, three Business Days before the scheduled date of such
repayment; provided that each repayment of Term Borrowings of either Class shall
be applied to repay any outstanding ABR Term Borrowings of such Class before any
other Borrowings of such Class. Each repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.11. Prepayment of Loans. (a) The Borrowers 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.
(b) (i) In the event and on each occasion that any Net Proceeds are
received by or on behalf of Level 3, any Borrower or any Restricted
Subsidiary in respect of any Prepayment Event, the Equipment Borrowers (or
Level 3 on behalf of the Equipment Borrowers) and Level 3 shall,
immediately after such Net Proceeds are received, prepay Term Borrowings
and Incremental Borrowings, if any, in an aggregate amount equal to such
Net Proceeds.
(ii) In the event and on each occasion that any payment described
under Section 6.08(b)(5) is made in an amount in excess of the amount
available in the Debt Repurchases Basket prior to giving effect thereto,
the Equipment Borrowers (or Level 3 on behalf of the Equipment Borrowers)
and Level 3 shall prepay Term Borrowings and Incremental Borrowings, if
any, in an aggregate amount equal to the amount of such excess on the last
day of the fiscal quarter in which such payment is made; provided that if
the amount of such payment when taken together with the aggregate amount of
all other such payments in respect of which a prepayment of Term Borrowings
and Incremental Borrowings has not at such time yet been made under this
clause (ii) (the "Cumulative Amount") is greater than $20,000,000, Level 3
shall prepay Term Borrowings and Incremental Borrowings, if any, in an
aggregate amount equal to the Cumulative Amount not later than the day on
which such payment is made.
(c) Following the end of each fiscal year of the Borrower, commencing with
the fiscal year ending December 31, 2003, the Borrower shall prepay Term
Borrowings and Incremental Borrowings, if any, in an aggregate amount equal to
50% of Excess Cash Flow for such fiscal year; provided, however, that no
prepayment pursuant to this paragraph (c) shall be required on and after the
first date that the Leverage Ratio is less than 5.0 to 1.0 at the end of two
consecutive fiscal quarters. 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 120 days after the end of such fiscal
year).
(d) Prior to any optional or mandatory prepayment of Borrowings hereunder,
the relevant Borrower (or Level 3 on its behalf) 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. In the event of any
optional or mandatory prepayment of Term Borrowings or Incremental Borrowings
made at a time when Term Borrowings and Incremental Borrowings of more than one
Class remain outstanding, the relevant Borrowers shall select Term Borrowings
and Incremental Borrowings to be prepaid so that the aggregate amount of such
prepayment is allocated between the Tranche A Term Borrowings, Tranche B Term
Borrowings, Tranche C Term Borrowings and Incremental Borrowings pro rata based
on the aggregate principal amount of outstanding Borrowings of each such Class;
provided that (i) in the case of mandatory prepayments, only Tranche A Term
Borrowings, Tranche B Term Borrowings and Tranche C Term Borrowings will be
subject to prepayment, and (ii) any Tranche B Lender and Tranche C Lender may
elect, by notice to the Administrative Agent by telephone (confirmed by
telecopy) at least one Business Day prior to the prepayment date, to decline all
or any portion of any prepayment of its Tranche B Term Loans or Tranche C Loans
pursuant
to this Section (other than an optional prepayment pursuant to paragraph (a) of
this Section, which may not be declined), in which case the aggregate amount of
the prepayment that would have been applied to prepay Tranche B Term Loans or
Tranche C Loans but was so declined shall be applied to prepay Tranche A Term
Borrowings. No optional prepayments of Revolving Loans may be made (other than
optional prepayments of Revolving Loans without a corresponding reduction in
Revolving Commitments) unless all Term Loans have been paid in full and all
commitments to make Term Loans have expired or been terminated.
(e) The relevant Borrower (or Level 3 on its behalf) shall notify the
Administrative Agent (and, in the case of prepayment of a Swingline Loan, the
Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not
later than 1:00 p.m., New York City time, three Business Days before the date of
prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing, not
later than 1:00 p.m., New York City time, one Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later
than 12:00 noon, New York City time, on the date of prepayment; provided that in
the case of any prepayment of a Cumulative Amount under Section 2.11(b)(ii)
above, such notice need only be given at the time the prepayment is made. Each
such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid and, in the
case of a mandatory prepayment, a reasonably detailed calculation of the amount
of such prepayment; provided that, if a notice of optional prepayment is given
in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.08, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice (other than a notice
relating solely to Swingline Loans), the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Borrowing shall
be in an amount that would be permitted in the case of an advance of a Borrowing
of the same Type as provided in Section 2.02, 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 shall be accompanied by accrued interest to the extent required by
Section 2.14.
(f) If on the date of any Revolving Borrowing the Pro Forma Fixed Charge
Ratio was less than 1.00, and the Borrowers shall not on such date be subject to
the requirements of this paragraph due to the making of a prior Revolving
Borrowing at a time when the Pro Forma Fixed Charge Ratio was less than 1.00,
the Borrowers shall prepay Revolving Loans so that there shall be no Revolving
Loans or Swingline Loans outstanding for a period of not less than 90
consecutive days during each of the 12-month periods commencing on the date of
such Borrowing and on each anniversary of such date; provided that such
prepayment requirement shall cease to apply on the first date after such
Borrowing on which the Pro Forma Fixed Charge Ratio is equal to or greater than
1.00.
SECTION 2.12. Tranche B Facility and Tranche C Facility Prepayment Fees.
(a) Voluntary and mandatory payments or prepayments of Tranche B Term Loans and
repayments of Tranche B Term Loans as a result of acceleration upon an Event of
Default consisting of the occurrence of a Change in Control, in each case made
prior to the second anniversary of the Third Amendment Effective Date, shall be
accompanied by payment of a prepayment fee as follows:
(A) if such prepayment or repayment is made on or before the first
anniversary of the Third Amendment Effective Date, a fee equal to 2%
of the amount or such prepayment or repayment; and
(B) if such prepayment or repayment is made after the first anniversary
but on or before the second anniversary of the Third Amendment
Effective Date, a fee equal to 1% of the amount of such prepayment or
repayment.
(b) Voluntary and mandatory payments or prepayments of Tranche C Term Loans
and repayments of Tranche C Term Loans as a result of acceleration upon an Event
of Default consisting of the occurrence of a Change in Control, in each case
made prior to the third anniversary of the Third Amendment Effective Date, shall
be accompanied by payment of a prepayment fee as follows:
(A) if such prepayment or repayment is made on or before the first
anniversary of the Third Amendment Effective Date, a fee equal to 3%
of the amount or such prepayment or repayment;
(B) if such prepayment or repayment is made after the first anniversary
but on or before the second anniversary of the Third Amendment
Effective Date, a fee equal to 2% of the amount of such prepayment or
repayment; and
(C) if such prepayment or repayment is made after the second anniversary
but on or before the third anniversary of the Third Amendment
Effective Date, a fee equal to 1% of the amount of such prepayment or
repayment.
SECTION 2.13. Fees. (a) BTE, in the case of the Tranche A Commitments and
the Tranche B Commitments, and the RC Borrowers, jointly and severally, in the
case of the Revolving Commitments, agree to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the
Applicable Commitment Fee Rate on the daily unused amount of each Commitment of
such Lender during the period from and including the date hereof to but
excluding the date on which such Commitment terminates. Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the relevant Commitment
terminates, commencing on the first such date to occur after the date hereof.
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). For purposes of computing commitment fees with
respect to Revolving Commitments, a Revolving Commitment of a Lender shall be
deemed to be used to the extent of the outstanding Revolving Loans and LC
Exposure of such Lender (and the Swingline Exposure of such Lender shall be
disregarded for such purpose).
(b) The RC Borrowers, jointly and severally, agree to pay (i) to the
Administrative Agent for the account of each Revolving Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at the same Applicable Rate as interest on Eurodollar Revolving Loans on the
daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Revolving Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee,
which shall accrue at the rate or rates per annum separately agreed upon between
Level 3 and the Issuing Bank on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Revolving Commitments and the date on
which there ceases to be any LC Exposure, as well as the Issuing Bank's standard
fees with respect to the issuance, amendment, renewal or extension of any Letter
of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting 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).
(c) Level 3 and the Borrowers agree to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon with the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.14. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest at
the LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by any 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 (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar 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 LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.15. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar 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 LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the 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 Level 3 and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies Level 3 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 Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.16. Increased Costs. (a) If any Lender shall give notice to the
Administrative Agent and Level 3 at any time to the effect that Eurocurrency
Reserve Requirements are, or are scheduled to become, effective and that such
Lender is or will be generally subject to such Eurocurrency Reserve Requirements
as a result of which such Lender will incur additional costs, then such Lender
shall, for each day from the later of the date of such notice and the date on
which such Eurocurrency Reserve Requirements become effective, be entitled to
additional interest on each Eurodollar Loan made by it at a rate per annum
determined for such day (rounded upward to the nearest 100th of 1%) equal to the
remainder obtained by subtracting (i) the LIBO Rate for such Eurodollar Loan
from (ii) the rate obtained by dividing such LIBO Rate by a percentage equal to
100% minus the then-applicable Eurocurrency Reserve Requirements. Such
additional interest will be payable in arrears to the Administrative Agent, for
the account of such Lender, on each Interest Payment Date relating to such
Eurodollar Loan and on any other date when interest is required to be paid
hereunder with respect to such Loan. Any Lender which gives a notice under this
paragraph (a) shall promptly withdraw such notice (by written notice of
withdrawal given to the Administrative
Agent and Level 3) in the event Eurocurrency Reserve Requirements cease to apply
to it or the circumstances giving rise to such notice otherwise cease to exist.
(b) 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 extended by, any Lender (except any
Eurocurrency Reserve Requirement) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then
Level 3 and the Borrowers or the Incremental Borrower, as the case may be, will
pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank, as the
case may be, for such additional costs incurred or reduction suffered. This
Section 2.16(b) shall not apply to any additional costs or reductions relating
to Taxes, which are governed by Section 2.18.
(c) If any Lender or the Issuing Bank 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 or the Issuing Bank's capital or on the capital of
such Lender's or the Issuing Bank's holding company, if any, as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or the Issuing Bank's policies and the policies
of such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time Level 3 and the Borrowers or the Incremental
Borrower, as the case may be, will pay to such Lender such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's holding company for any such reduction suffered.
(d) A certificate of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to Level 3 and shall be conclusive absent manifest error. Level 3 and
the Borrowers, as the case may be shall pay such Lender or the Issuing Bank, as
the case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(e) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that Level 3 and the Borrowers shall not be required to compensate a Lender or
the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 180 days prior to the date that such Lender or the Issuing
Bank, as the case may be, notifies Level 3 of the Change in Law giving rise to
such increased costs or reductions and of such Lender's or the Issuing Bank'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 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.17. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Revolving Loan or Term Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(g) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by Level 3 pursuant to
Section 2.19, then, in any such event, Level 3 and the relevant Borrower, as
applicable, shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed not to include any lost profit (including
loss of Applicable Margin) and 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 LIBO Rate that is or 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 Section shall be delivered to Level 3 and shall be
conclusive absent manifest error. Level 3
or the relevant Borrower, as applicable, shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
SECTION 2.18. Taxes. (a) Any and all payments by or on account of any
obligation of any Borrower hereunder or under any other Loan Document or Finance
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if a 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, Lender or Issuing Bank (as the case may
be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Level 3 and the relevant Borrowers, as applicable, shall indemnify the
Administrative Agent, each Lender and the Issuing Bank, within 10 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the
case may be, on or with respect to any payment by or on account of any
obligation of such Borrower hereunder or under any other Loan Document or
Finance 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 or liability delivered to Level 3 or the relevant
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by a Borrower to a Governmental Authority, such Borrower shall deliver to
the Administrative Agent reasonably satisfactory evidence of such payment or the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment; provided however in no case shall such Borrower be
required to deliver documentation not normally issued by such Governmental
Authority.
(e) Any Foreign Lender that is entitled to an exemption from or reduction
of withholding tax under the law of the jurisdiction in which the Borrowers are
located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to Level 3 (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by Level 3 as will permit such payments to be made without withholding
or at a reduced rate.
SECTION 2.19. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each Borrower shall make each payment required to be made by it hereunder or
under any other Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.16,
2.17 or 2.18, or otherwise) prior to 1:00 p.m., 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 its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.16, 2.17, 2.18 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to 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, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(to the extent determinable, to the Obligations of the Loan Party or Loan
Parties providing such funds) (i) first, towards payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any
of its Revolving
Loans, Term Loans or participations in LC Disbursements or Swingline Loans
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans, Term Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Revolving Loans,
Term Loans and participations in LC Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by Level 3 or any Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to Level 3 or any Subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). Each Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation in an obligation owed
by it pursuant to the foregoing arrangements may exercise against such Borrower
rights of set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor of such Borrower in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that such
Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at 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.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.19(d) or 9.03(c), then
the Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all such
unsatisfied obligations are fully paid.
SECTION 2.20. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.16, or if any Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.18, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.16 or 2.18, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. Level 3 and the Borrowers, as
applicable, hereby agree to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.16 (other than
paragraph (a) of such Section), or if any Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 2.18, if any Lender defaults in its obligation to
fund Loans hereunder or under the circumstances contemplated by Section 9.02(c),
then Level 3 may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) Level 3 shall
have received the prior written consent of the Administrative Agent (and, if a
Revolving Commitment is being assigned, the Issuing Bank and Swingline Lender),
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or Level 3 or a Borrower, as applicable (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.16 or payments required to be made pursuant to
Section 2.18, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling Level 3 to require such assignment and
delegation cease to apply.
SECTION 2.21. Incremental Facility. (a) Notwithstanding any other provision
of this Agreement, no Incremental Loan shall be requested or made at any time on
or after the Amendment Effectiveness Date without the prior written consent of
each Lender.
(b) At any time prior to the Tranche B Maturity Date, Level 3 may, by
notice to the Administrative Agent (which shall promptly deliver a copy to each
of the Lenders), request the addition of a new tranche of Term Loans (all such
Term Loans, collectively, the "Incremental Loans") provided, however, that both
at the time of any such request and after giving effect to any such Incremental
Loans (i) no Default shall exist, (ii) Level 3 and the Borrowers shall be in
pro forma compliance with each financial covenant and (iii) if BTE is the
Borrower of the Incremental Loans, the ratio of BTE Total Debt to BTE's Total
Gross Assets, on a pro forma stand-alone basis (after giving effect to the
Incremental Loans and the use of Proceeds thereof) shall not exceed .65 to 1.0.
The Incremental Loans (i) shall be in an aggregate principal amount not in
excess of $975,000,000, (ii) shall, if BTE is the Borrower of the Incremental
Loans, rank pari passu in right of payment and of security with the Term Loans,
(iii) shall mature no sooner than, and have a longer average weighted life than,
the Tranche B Term Loans, (iv) will not amortize (other than nominal
amortization customary in the institutional loan market) and will not mature
earlier than ten years from the date hereof, (v) shall not be available unless
the Tranche A Commitments and Tranche B Commitments have been fully utilized and
(vi) shall otherwise be treated no more favorably than the Tranche B Term Loans
(including with respect to mandatory and voluntary prepayments); provided that
(i) an amount not in excess of $150,000,000 in principal amount of the
Incremental Loans may mature on the Tranche A Maturity Date (and amortize on a
pro rata basis with the then remaining Tranche A Loans prior to such date),
(ii) an amount equal to not more than the excess of $225,000,000 over the amount
of Incremental Loans, if any, maturing as set forth in clause (i) may mature on
the Tranche B Maturity Date (and amortize on a pro rata basis with the then
remaining Tranche B Loans prior to such date), and (iii) the terms and
conditions applicable to the Incremental Loans may provide for additional or
different financial or other covenants applicable only during periods after the
Tranche B Maturity Date. Such notice shall set forth the requested amount of
Incremental Loans (which amount shall not exceed $975,000,000). Level 3
currently intends to offer each existing Lender the opportunity to offer a
commitment to provide Incremental Loans; provided, however, no existing Lender
will be obligated to subscribe for any portion of such commitments. In the event
that existing Lenders provide commitments in an aggregate amount less than the
total amount of the Incremental Loans requested by Level 3, Level 3 shall
arrange for one or more banks, other financial institutions or vendors of
telecommunications equipment (any such bank, other financial institution or
vendor being called an "Additional Lender") to extend commitments to provide
Incremental Loans in an aggregate amount equal to the unsubscribed amount,
provided that each Additional Lender that is not a vendor of telecommunication
equipment shall be subject to the approval of the Administrative Agent (which
approval shall not be unreasonably withheld). Commitments in
respect of Incremental Loans shall become Commitments under this Agreement
pursuant to an Incremental Facility Amendment to this Agreement and, as
appropriate, the other Loan Documents, executed by each of the Borrowers, each
Lender agreeing to provide such Commitment, if any, each Additional Lender, if
any, and the Administrative Agent. The Incremental Facility Amendment may,
without the consent of any other Lenders, effect such amendments to this
Agreement and the other Loan Documents (including, if the Incremental Loans are
borrowed by Equipment Co. II as contemplated by clause (c) below, execution of
additional ancillary documents) as may be necessary or appropriate, in the
opinion of the Administrative Agent, to effect the provisions of this Section.
The effectiveness of any Incremental Facility Amendment shall be subject to the
satisfaction on the date thereof of each of the conditions set forth in
Section 4.02.
(c) All or any portion of the Incremental Facilities may be borrowed, at
Level 3's option, by BTE or by a Wholly Owned newly formed special purpose
equipment Subsidiary ("Equipment Co. II"). In the latter case, the Incremental
Facilities lenders to Equipment Co. II will be secured only by the
Telecommunications Assets financed in whole or part with the proceeds of the
Incremental Loans made to Equipment Co. II.
ARTICLE III
Representations and Warranties
Each of Level 3 and each of the Borrowers represents and warrants to the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Level 3 and the Restricted
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be entered
into by each Loan Party are within such Loan Party's powers and have been duly
authorized by all necessary corporate or other action and, if required,
stockholder or member action. This Agreement has been duly executed and
delivered by Level 3 and each of the Borrowers and constitutes, and each other
Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and
binding obligation of Level 3, such Borrowers or such Loan Party (as the case
may be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, filings necessary to perfect Liens
created under the Loan Documents and, in the case of Borrowings by any Person,
the approvals listed on Schedule 3.03, (b) will not violate any applicable law
or regulation of a type typically applicable to transactions of the type
contemplated by the Transactions or the charter, by-laws or other organizational
documents of Level 3 or any of the Subsidiaries or any material order of any
Governmental Authority, (c) will not violate or result in a default under any
material indenture, agreement or other instrument binding upon Level 3 or any of
the Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by Level 3 or any of the Subsidiaries, and (d) will not
result in the creation or imposition of any Lien on any asset of Level 3 or any
of the Restricted Subsidiaries, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) Level 3
has heretofore furnished to the Lenders (i) its consolidated balance sheet and
statements of income, stockholders equity and cash flows as of and for the
fiscal year ended December 31, 2001, reported on by Arthur Andersen LLP,
independent public accountants, and (ii) the combined balance sheet and
statements of income and cash flows of Level 3 and the Restricted Subsidiaries
as of and for the fiscal quarter and the portion of the fiscal year ended March
31, 2002, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of Level 3 and its consolidated Subsidiaries or
Level 3 and its combined Restricted Subsidiaries, as the case may be, as of such
dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred
to in clause (ii) above.
(b) Except as disclosed in the financial statements referred to above or
the notes thereto, in Level 3's Form 10-K for the year ended December 31, 2001,
or in the filings with the Securities and Exchange Commission set forth on
Schedule 1 to the Amendment Agreement and except for the Disclosed Matters,
after giving effect to the Transactions, none of Level 3 or the Restricted
Subsidiaries has, as of the Amendment Effectiveness Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.
(c) Since December 31, 1998, there has been no material adverse change in
the business, assets, operations or condition, financial or otherwise, of
Level 3 and the Restricted Subsidiaries, taken as a whole. It is understood and
agreed that no such material adverse change shall be deemed to have occurred
during the period extending from December 31, 1998, to June 30, 2002. In
addition, it is understood and agreed that the effect of the December 31, 2001,
impairment charges and impairment charges based solely on general economic or
industry conditions taken under SFAS 144 subsequent to such date shall be
excluded from any determination of whether such a material adverse change shall
have occurred as of any date of determination.
SECTION 3.05. Properties. (a) Each of Level 3 and the Restricted
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of Level 3 and the Restricted Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by Level 3 and the
Restricted Subsidiaries to the knowledge of Level 3 does not infringe upon the
rights of any other Person, except for any such infringements that, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property that is
owned or leased by Level 3 or any of the Restricted Subsidiaries as of the
Amendment Effectiveness Date after giving effect to the Transactions.
(d) As of the Amendment Effectiveness Date, neither Level 3 nor any of the
Restricted Subsidiaries has received notice of, or has knowledge of, any pending
or contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Level 3 or any Borrower,
threatened against or affecting Level 3 or any of the Restricted Subsidiaries
(i) as to which there is a reasonable possibility of an adverse determination
and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any of the Loan Documents or
the Transactions.
(b) Except for the Disclosed Matters and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, neither Level 3 nor any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of Level 3 and the
Restricted Subsidiaries is in compliance with all laws, regulations and orders
of any Governmental Authority applicable to it or its property and all
indentures, agreements and other instruments binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither Level 3 nor
any of the Loan Parties is (a) an "investment company" or is controlled by an
entity that is an "investment company" as defined in, or subject to regulation
under, the Investment Company Act of 1940 or (b) a "holding company" or is
controlled by an entity that is a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of Level 3 and the Subsidiaries has timely filed
or caused to be filed all tax returns and reports required to have been filed
and has paid or caused to be paid all taxes required to have been paid by it,
except (a) taxes that are being contested in good faith by appropriate
proceedings and for which Level 3 or such Subsidiary, as applicable, has set
aside on its books adequate reserves or (b) to the extent that the failure to do
so could not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected
to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan by an amount that could reasonably be
expected to result in a Material Adverse Effect, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed the fair market value of the assets of all such
underfunded Plans by an amount that could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.11. Disclosure. Level 3 has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which Level 3 or
any of the Restricted Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. None of the other reports,
financial statements, certificates or other information furnished on or after
January 1, 2002, by or on behalf of any Loan Party to the Administrative Agent
or any Lender in connection with the negotiation of the Amendment Agreement,
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as modified or supplemented by other information so furnished) after January 1,
2002, when taken as a whole, contains any material misstatement of fact or omits
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that, with respect to projected financial information, Level 3 and the Borrowers
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name of, and the
ownership interest of Level 3 in, each Subsidiary and identifies each Subsidiary
that is a Subsidiary Loan Party, in each case as of the Amendment Effectiveness
Date. Level 3 believes that the insurance maintained by or on behalf of Level 3
and the Restricted Subsidiaries is adequate.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of Level 3 and the Restricted Subsidiaries
as of the Amendment Effectiveness Date. As of the Amendment Effectiveness Date,
all premiums in respect of such insurance have been paid to the extent due.
SECTION 3.14. Labor Matters. As of the Amendment Effectiveness Date, there
are no material strikes, lockouts or slowdowns against Level 3 or any Restricted
Subsidiary pending or, to the knowledge of Level 3 or the Borrowers, threatened.
The hours worked by and payments made to employees of Level 3 and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or
foreign law dealing with such matters except where the failure to do so could
not reasonably be expected to result in a Material Adverse Effect. All payments
due from Level 3 or any Restricted Subsidiary, or for which any claim may be
made against Level 3 or any Restricted Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of Level 3 or such Restricted Subsidiary
except where the failure to do so could not reasonably be expected to result in
a Material Adverse Effect. The consummation of the Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which Level 3 or any
Restricted Subsidiary is bound.
SECTION 3.15. Intellectual Property. Each of Level 3 and its Restricted
Subsidiaries owns, or is licensed to use, all intellectual property that is
necessary for the conduct of its business as currently conducted except for any
failure to so own or license intellectual property which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
No claim has been asserted to the knowledge of Level 3 and is pending against
Level 3 or any Restricted Subsidiary challenging or questioning the use of any
intellectual property by it or the validity or effectiveness of any intellectual
property used by it, except for any claims, which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
The use of intellectual property by Level 3 or any Restricted Subsidiary does
not to the knowledge of Level 3 infringe on the rights of any person in any
material respect and in any manner which could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.16. [omitted]
SECTION 3.17. Security Interests. (a) When executed and delivered, the
Shared Collateral Pledge Agreement will be effective to create in favor of the
Agent for the ratable benefit of the Shared Collateral Secured Parties a valid
and enforceable security interest in the Collateral (as defined in the Shared
Collateral Pledge Agreement) and, when the portion of the Shared Collateral
constituting certificated securities (as defined in the Uniform Commercial Code)
is delivered to the Administrative Agent thereunder together with instruments of
transfer duly endorsed in blank, the Shared Collateral Pledge Agreement shall
constitute a fully perfected first priority Lien on, and security interest in,
all right, title and interest of the pledgors thereunder in such Shared
Collateral, prior and superior in right to any other Person.
(b) The Shared Collateral Security Agreement and the Term Loan Security
Agreement are each effective to create in favor of the Agent for the ratable
benefit of the Shared Collateral Secured Parties and the Term Loan Secured
Parties, respectively, a valid and enforceable security interest in the
Collateral (as defined in each Security Agreement) and,
when financing statements in appropriate form are filed in the offices specified
in the Perfection Certificate, each Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in such Collateral, to the extent perfection can be
obtained by filing Uniform Commercial Code financing statements, other than the
Intellectual Property (as defined in the Security Agreements), in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person to the
extent perfection can be obtained by filing Uniform Commercial Code financing
statements, other than with respect to the rights of Persons pursuant to Liens
expressly permitted by Section 6.02.
(c) When each Security Agreement is filed in the United States Patent and
Trademark Office and the United States Copyright Office, the security interest
created thereunder shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in the
Intellectual Property (as defined in such Security Agreement) in which a
security interest may be perfected by filing, recording or registering a
security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly permitted
by Section 6.02 (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office may be
necessary to perfect a lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties after the date hereof).
(d) The Mortgages are effective to create, subject to the exceptions
listed in each title insurance policy covering such Mortgage, in favor of the
Agent for the ratable benefit of the Shared Collateral Secured Parties or Term
Loan Secured Parties, as the case may be, a legal, valid and enforceable Lien on
all of the Loan Parties' right, title and interest in and to the Mortgaged
Properties thereunder and the proceeds thereof, and when the Mortgages are filed
in the offices specified on Schedule 3.17, the Mortgages shall constitute a Lien
on, and security interest in, all right, title and interest of the Loan Parties
in such Mortgaged Properties and the proceeds thereof, in each case prior and
superior in right to any other Person, other than with respect to Permitted
Encumbrances.
SECTION 3.18. Absence of Non-Permitted Obligations. None of the Equipment
Borrowers has incurred or assumed, after the Amendment Effectiveness Date, any
obligations or liabilities other than as permitted by Section 6.12.
SECTION 3.19. FCC Compliance. (a) Level 3 and each Restricted Subsidiary
are in compliance with the Communications Act except where the failure to do so
could not reasonably be expected to result in a Material Adverse Effect.
(b) To the knowledge of Level 3, there is no investigation, notice of
apparent liability, violation, forfeiture or other order or complaint issued by
or before the FCC, or of any other proceedings of or before the FCC, affecting
it or any Restricted Subsidiary which could reasonably be expected to have a
Material Adverse Effect.
(c) No event has occurred which (i) results in, or after notice or lapse
of time or both would result in, revocation, suspension, adverse modifications,
non-renewal, impairment, restriction or termination of, or order of forfeiture
with respect to, any License in any respect which could reasonably be expected
to have a Material Adverse Effect or (ii) affects or could reasonably be
expected in the future to affect any of the rights of Level 3 or any Restricted
Subsidiary under any License held by Level 3 or such Subsidiary in any respect
which could reasonably be expected to have a Material Adverse Effect.
(d) Level 3 and each Restricted Subsidiary have duly filed in a timely
manner all material filings, reports, applications, documents, instruments and
information required to be filed by it under the Communications Act, and all
such filings were when made true, correct and complete in all respects except
where the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or
extension of such Letter of Credit, as applicable except to the extent
that any representation or warranty relates to any earlier date (in
which case such representation or warranty shall be correct as of such
earlier date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such
Letter of Credit, as applicable, no Default or Finance Event of
Default shall have occurred and be continuing.
(c) In the case of each Revolving Borrowing or Swingline
Borrowing after the Amendment Effectiveness Date, (i) the Borrowing is
requested to be made on a date on or after the earlier of August 30,
2003, and the first anniversary of the Amendment Effectiveness Date
and (ii) as of the requested date of such Borrowing, the Pro Forma
Fixed Charge Ratio is not less than 0.75.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by Level 3
and the Borrowers on the date thereof as to the matters specified in paragraphs
(a) and (b) (and in the case of each Revolving Borrowing or Swingline Borrowing
after the Amendment Effectiveness Date, (c)) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each of Level 3 and the Borrowers
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. Level 3 will
furnish to the Administrative Agent on behalf of the Lenders:
(a) within 120 days after the end of each fiscal year of Level 3, an
audited combined balance sheet of Level 3 and the Subsidiaries (excluding
the Toll Road Business) and related statements of operations, and cash
flows of Level 3 and the Subsidiaries (excluding the Toll Road Business) as
of the end of and for such year, setting forth in each case commencing
December 31, 2002, in comparative form the figures for the previous fiscal
year, all reported on by KPMG LLC or other independent public accountants
of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such combined financial
statements present fairly in all material respects the financial condition
and results of operations of Level 3
and its Subsidiaries (excluding the Toll Road Business) on a combined basis
in accordance with GAAP consistently applied;
(b) within 60 days after the end of each of the first three fiscal
quarters of each fiscal year of Level 3, a combined balance sheet of
Level 3 and the Subsidiaries (excluding the Toll Road Business) and related
statements of operations and cash flows of Level 3 and the Subsidiaries
(excluding the Toll Road Business) as of the end of and for such fiscal
quarter and the then elapsed portion of the fiscal year, setting forth in
each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of Level 3 and its Subsidiaries (excluding the Toll
Road Business) on a combined basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of Level 3
(i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed
to be taken with respect thereto, (ii) setting forth reasonably detailed
calculations demonstrating compliance with Section 6.14 (including a
reasonably detailed calculation of Combined Adjusted EBITDA, BTE Adjusted
Assets and a balance sheet of BTE) and reasonably detailed calculations of
the Pro Forma Fixed Charge Ratio after the delivery of such financial
statements (including a reasonably detailed calculation of Combined Fixed
Charges), and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of Level 3's audited
financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) within 15 days after the end of each month, schedules for each
week completed during such month setting forth for Level 3 and each of the
Subsidiaries its weekly balances of cash and marketable securities in the
form of Permitted Investments; within 30 days after the end of each month,
statements from the financial institutions with whom deposits thereof are
maintained sufficient to confirm compliance with
Section 6.14(i) as of the end of such month; and, upon request by the Agent
for its monitoring purposes, more frequent information as to balances of
cash and marketable securities in the form of Permitted Investments of
Level 3 and the Subsidiaries;
(f) within 10 Business Days after approval thereof by the board of
directors of Level 3, a budget of Level 3 and the Subsidiaries (excluding
the Toll Road Business) for each fiscal year and, to the extent all
relevant internal approvals have been obtained, any significant revisions
of such budget;
(g) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Level 3 or any Subsidiary with the Securities and Exchange Commission, or
any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by Level 3 to its shareholders generally, as the case may be; and
(h) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
Level 3 or any Subsidiary, or compliance with the terms of any Loan
Document, as the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. Level 3 and the Borrowers will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting
Level 3, the Borrowers or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect; and
(c) any other development, including any ERISA Event, that results in,
or could reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of Level 3 setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) Level 3 and the
Borrowers will furnish to the Administrative Agent prompt written notice of any
change (i) in
any Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. Each of Level 3 and the
Borrowers agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. Each of Level 3 and the Borrowers also agrees promptly to
notify the Administrative Agent if any material portion of the Collateral is
damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to clause (a) of Section 5.01,
Level 3 shall deliver to the Agent a certificate of a Financial Officer and the
general counsel or assistant general counsel of Level 3 (i) setting forth the
information required pursuant to Section 2 of the Perfection Certificate or
confirming that there has been no change in such information since the date of
the Perfection Certificate delivered on the Amendment Effectiveness Date or the
date of the most recent certificate delivered pursuant to this Section and (ii)
certifying that all Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the applicable Security Documents for a
period of not less than 18 months after the date of such certificate (except as
noted therein with respect to any continuation statements to be filed within
such period).
SECTION 5.04. Existence; Conduct of Business. Each of Level 3 and the
Borrowers will, and will cause each of the Restricted Subsidiaries to, do or
cause to be done all things necessary to preserve, renew and keep in full force
and effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names except where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.
SECTION 5.05. Payment of Taxes. Level 3 will, and will cause each of the
Restricted Subsidiaries to, pay its material Tax obligations, before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in
good faith by appropriate proceedings, (b) Level 3 or such Subsidiary has set
aside on its books adequate reserves with respect thereto in accordance with
GAAP, (c) such contest effectively suspends collection of the contested
obligation and the enforcement of any Lien securing such obligation and (d) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Level 3 will, and will cause each
of the Restricted Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted.
SECTION 5.07. Insurance. Level 3 will, and will cause each of the
Restricted Subsidiaries to, maintain, with financially sound and reputable
insurance companies (a) insurance in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
and (b) all insurance required to be maintained pursuant to the Security
Documents. Level 3 will furnish to the Lenders, upon request of the
Administrative Agent, information in reasonable detail as to the insurance so
maintained.
SECTION 5.08. Casualty and Condemnation. Level 3 (a) will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any portion of any Collateral or the commencement of any
action or proceeding for the taking of any Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding and (b) will ensure that the Net Proceeds of any such event (whether
in the form of insurance proceeds, condemnation awards or otherwise) are
collected and applied in accordance with the applicable provisions of this
Agreement and the Security Documents.
SECTION 5.09. Books and Records; Inspection and Audit Rights. Each of
Level 3 and the Borrowers will, and will cause each of the Restricted
Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its
business and activities. Each of Level 3 and the Borrowers will, and will cause
each of the Restricted Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.10. Compliance with Laws. Each of Level 3 and the Borrowers will,
and will cause each of the Restricted Subsidiaries to, comply with all laws
(including the Communication Act), rules, regulations and orders of any
Governmental Authority applicable to
it or its property (including obligations under Licenses), except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.11. Use of Proceeds and Letters of Credit. The proceeds of the
Term Loans, together with the proceeds of the Incremental Loans (if borrowed by
BTE), will be used by BTE solely to finance the purchase by BTE of
Telecommunications Assets (including Telecommunications Assets owned on the date
of this Agreement) which will be held and owned by BTE, pledged to the
Collateral Agent for the benefit of the Shared Collateral Secured Parties
pursuant to the Shared Collateral Security Agreement or appropriate Mortgages
and made available for use by operating Subsidiaries pursuant to the Master
Lease Agreement. The proceeds of the Incremental Loans, if borrowed by a
Subsidiary of Level 3 other than BTE, shall be used by such Subsidiary solely to
finance the purchase of Telecommunications Assets which will be held and owned
by such Subsidiary, pledged to the Collateral Agent for the benefit of the
Lenders making Incremental Loans, and made available for use by operating
Subsidiaries pursuant to a lease agreement substantially similar to the Master
Lease Agreement. Term Loans and Incremental Loans may not exceed 100% of the
purchase price of the assets being financed with the proceeds thereof. The
proceeds of the Revolving Loans and Swingline Loans and the issuance of Letters
of Credit will be used by the RC Borrowers only for working capital and general
corporate purposes, including the construction, expansion, development or
acquisition of Telecommunications Assets and Telecommunications Related
Businesses. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations U and X.
SECTION 5.12. Additional Subsidiaries; Certain Immaterial Subsidiaries. (a)
If any additional Domestic Subsidiary (other than an Immaterial Subsidiary) is
formed or acquired after the Effective Date, Level 3 will, within five Business
Days after such Subsidiary is formed or acquired, notify the Administrative
Agent thereof and will, within such five Business Days (or such longer period,
not to exceed 30 days, as the Administrative Agent may agree to), cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary (if it is a Subsidiary Loan Party) and with respect to any Equity
Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan
Party.
(b) If any additional Foreign Subsidiary (other than an Immaterial
Subsidiary) is formed or acquired after the Effective Date, Level 3 will, within
five Business Days after such Subsidiary is formed or acquired, notify the
Administrative Agent thereof and will, within 15 days (or, with the consent of
the Administrative Agent (such consent not to be unreasonably withheld), such
longer period, not to exceed 60 days), cause the Collateral and Guarantee
Requirement to be satisfied with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.
(c) If any Person listed on Schedule 4.02 shall have consolidated annual
revenues for any four-fiscal-quarter period in excess of $1,000,000 or shall at
any time have a book value of total assets in excess of $500,000, Level 3 will,
within promptly notify the Administrative Agent thereof and will, within fifteen
days (or, with the consent of the Administrative Agent (such consent not to be
unreasonably withheld), such longer period, not to exceed 60 days), cause 65% of
the outstanding voting Equity Interests and all the outstanding non-voting
Equity Interests in such Subsidiary owned by or on behalf of Level 3 or any
Subsidiary Loan Party to be pledged pursuant to the Shared Collateral Pledge
Agreement and, if such Equity Interests are in certificated form, the Agent
shall have received certificates or other instruments representing all such
Equity Interests, together with stock powers or other instruments of transfer
with respect thereto endorsed in blank.
SECTION 5.13. Further Assurances. (a) Level 3 will, and will cause each
Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), which may be required under any
applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, to effectuate the transactions contemplated by the Loan
Documents or to grant, preserve, protect or perfect the Liens created or
intended to be created by the Loan Documents or the validity or priority of any
such Lien, all at the expense of the Loan Parties. Level 3 and the Borrowers
also agree to provide to the Administrative Agent, from time to time upon
request, evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Loan Documents.
(b) If any material assets (including any real property or improvements
thereto or any interest therein) are acquired by Level 3 or any Subsidiary Loan
Party after the Effective Date (other than (i) assets constituting Collateral
under the Security Agreements that become subject to the Lien of the applicable
Security Agreements upon acquisition thereof, (ii) Specified Real Estate or any
parcel of real estate which, together with any structures thereon and existing
improvements thereto, has a fair market value at the time of acquisition thereof
not in excess of $7,000,000 or (iii) assets subject to Liens securing
Indebtedness permitted by Sections 6.01 and 6.02), Level 3 will notify the
Administrative Agent and the Lenders thereof, and Level 3 will cause such assets
to be subjected to a Lien securing the Shared Collateral Secured Obligations and
will take, and cause the Subsidiary Loan Parties to take, such actions as shall
be necessary or reasonably requested by the Administrative Agent to grant and
perfect
such Liens, including actions described in paragraph (a) of this Section, all at
the expense of the Loan Parties.
(c) If any Telecom Equipment Assets are acquired by Whitney or any of its
subsidiaries after the Effective Date (other than assets constituting Collateral
under the Security Agreements that become subject to the Lien of the applicable
Security Agreement upon acquisition thereof) Level 3 will notify the
Administrative Agent and the Lenders thereof and cause such assets to be subject
to a Lien securing the Shared Collateral Secured Obligations and will take, and
cause Whitney and its subsidiaries to take, such actions as shall be necessary
or reasonably requested by the Administrative Agent to grant and perfect such
Liens, including actions described in paragraph (a) of this Section, all at the
expense of Whitney or the Loan Parties.
SECTION 5.14. Interest Rate Protection. Within 180 days after the Effective
Date, Level 3 will enter into, and thereafter will maintain in effect, one or
more interest rate protection agreements with Lenders (or Affiliates thereof) or
such other parties as shall be reasonably satisfactory to the Administrative
Agent, the effect of which (when taken together with other fixed rate
indebtedness) shall be to fix or limit the interest cost to Level 3 with respect
to at least 30% of the outstanding Combined Total Debt of Level 3 and the
Restricted Subsidiaries (including fixed rate indebtedness).
SECTION 5.15. Support of Equipment Borrowers. Level 3 will indemnify each
Equipment Borrower for, and provide each Equipment Borrower with the funds to
pay, all costs, expenses, liabilities and losses incurred by such Equipment
Borrower under vendor contracts or otherwise to the extent the amount required
to be paid in respect thereof exceeds such Equipment Borrower's then available
cash.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, each of Level 3 and the Borrowers covenants and agrees
with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) Level 3 and the
Borrowers will not, and will not permit any Restricted Subsidiary to, create,
incur, assume or
permit to exist any Indebtedness or Attributable Debt in respect of sale
lease-back transactions, except:
(i) Indebtedness created under the Loan Documents;
(ii) Permitted Debt of Level 3, provided that after giving effect
to the incurrence thereof, Level 3 is in pro forma compliance with the
financial covenants in Sections 6.14(d)-(i);
(iii) Indebtedness of Level 3 or Restricted Subsidiaries existing
on the date hereof and set forth in Schedule 6.01;
(iv) Indebtedness of Level 3 to any Restricted Subsidiary and of
any Restricted Subsidiary (other than an Equipment Borrower) to
Level 3 or any other Restricted Subsidiary; provided that Indebtedness
of any Restricted Subsidiary that is not a Loan Party to Level 3 or
any Subsidiary Loan Party shall be subject to Section 6.05;
(v) Guarantees by Level 3 or any Restricted Subsidiary (other
than any Equipment Borrower) of Indebtedness of any Restricted
Subsidiary; provided that Guarantees by Level 3 or any Subsidiary Loan
Party of Indebtedness of any Restricted Subsidiary that is not a Loan
Party shall be subject to Section 6.05;
(vi) Indebtedness of Level 3 or any Restricted Subsidiary (other
than a Foreign Subsidiary) incurred to finance the acquisition,
construction, installation, development or improvement of any fixed or
capital assets, including Capital Lease Obligations and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the
acquisition thereof; provided that (A) such Indebtedness is incurred
prior to or within 270 days after such acquisition or the completion
of such construction, installation, development or improvement and (B)
the aggregate principal amount of Indebtedness permitted by this
clause (vi), together with the aggregate principal amount of
outstanding Incremental Loans and the aggregate amount of Colocation
Guarantees permitted by Section 6.01(a)(xiv) in excess of
$250,000,000, shall not exceed $3,625,000,000 at any time outstanding;
(vii) Secured Indebtedness of Level 3 or any Restricted
Subsidiary other than an Equipment Borrower (including Attributable
Debt in respect of sale lease-back transactions) incurred in
connection with the financing of the Specified Real Estate and the
London Properties; provided the respective amounts thereof do not
exceed the fair market value of the relevant property (exclusive of
any Telecommunications Assets that
are fixtures thereto) at the time of incurrence of such Indebtedness
(as reasonably determined by the chief financial officer of Level 3);
(viii) pre-existing Indebtedness of any Person that becomes a
Restricted Subsidiary; provided that (A) such Indebtedness exists at
the time such Person becomes a Restricted Subsidiary and is not
created in contemplation of or in connection with such Person becoming
a Restricted Subsidiary and (B) the Collateral and Guarantee
Requirement is satisfied with respect to such Restricted Subsidiary
and any Equity Interests or Indebtedness of such Restricted Subsidiary
held by any Loan Party;
(ix) other Indebtedness of Level 3 or any Restricted Subsidiary
(other than of Equipment Borrowers and Foreign Subsidiaries),
including Attributable Debt in respect of sale lease-back
transactions, in an aggregate principal amount for all such
Indebtedness outstanding (including any refinancings of such
Indebtedness) not to exceed at the time of incurrence of any such
Indebtedness 5% of Combined Total Assets at the end of the fiscal
quarter most recently ended;
(x) Indebtedness of Level 3 and the Restricted Subsidiaries
pursuant to Hedging Agreements entered into to fix the effective rate
of interest on the Loans or other Indebtedness, provided such
transactions are entered into to hedge actual interest rate exposures
and not for the purpose of speculation;
(xi) Indebtedness incurred to refinance any Indebtedness
permitted under clauses (iii), (vi), (vii), (viii) and (ix) of this
Section 6.01; provided that (a) such refinancing Indebtedness
(i) shall not have a greater outstanding principal amount (except to
the extent necessary to pay fees, expenses, underwriting discounts and
prepayment premiums in connection therewith), an earlier maturity date
or a decreased weighted average life than the Indebtedness refinanced
and (ii) shall be subordinated to the Indebtedness created under the
Loan Documents to at least the extent of, and shall otherwise be
issued on terms no less favorable in any material respect to the
Lenders than, the Indebtedness refinanced, (b) the proceeds of such
Indebtedness shall be used solely to repay the Indebtedness refinanced
thereby and fees, expenses, underwriting discounts and prepayment
premiums in connection therewith and (c) such refinancing
Indebtedness, if incurred by Level 3, is not Guaranteed by any
Restricted Subsidiary;
(xii) surety and performance bonds incurred in the ordinary
course of business not securing Indebtedness for borrowed money;
(xiii) any Unrestricted Subordinated Debt;
(xiv) Colocation Guarantees in an aggregate amount not to exceed
$250,000,000 at any time outstanding; provided that neither Level 3
nor any Restricted Subsidiary will enter into any Colocation Guarantee
unless, in connection therewith, Level 3 or a Restricted Subsidiary
obtains the right to conduct, and receive and retain the revenues
derived from, the business of providing colocation space and related
services to customers at the colocation facilities financed in whole
or part with the Indebtedness of a Colocation Subsidiary to which such
Colocation Guarantee relates; and; and
(xv) Indebtedness of Foreign Subsidiaries not in excess of
$75,000,000 at any time outstanding.
For purposes of determining any particular amount of Indebtedness under this
Section 6.01, in the event an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described in the above clauses, Level 3,
in its sole discretion, may classify such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of such
clauses.
(b) The Borrowers will not, nor will they permit any Restricted Subsidiary
to, issue any preferred stock or be or become liable in respect of any
obligation (contingent or otherwise) to purchase, redeem, retire, acquire or
make any other payment in respect of any shares of Capital Stock of Level 3, any
Borrower or any Restricted Subsidiary or any option, warrant or other right to
acquire any such shares of capital stock.
(c) No Equipment Borrower will incur, assume or permit to exist any
Indebtedness except Indebtedness under the Loan Documents.
SECTION 6.02. Liens. (a) Level 3 and the Borrowers will not, and will not
permit any Restricted Subsidiary to, create, incur, assume or permit to exist
any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of Level 3 or any
Restricted Subsidiary existing on the date hereof and set forth in
Schedule 6.02; provided that (i) such Lien shall not apply to any
other property or asset of Level 3 or any Restricted Subsidiary and
(ii) such Lien shall secure only those obligations which it secures on
the date hereof
and extensions, renewals and replacements thereof that do not increase
(except as permitted under Section 6.01(a)(xi)) the outstanding
principal amount thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by Level 3 or any Restricted Subsidiary or on any
property or asset of any Person that becomes a Restricted Subsidiary
in connection with an acquisition permitted by Section 6.05 hereof
after the date hereof which Lien exists prior to the time such Person
becomes a Restricted Subsidiary; provided that (A) such Lien is not
created in contemplation of or in connection with such acquisition or
such Person becoming a Restricted Subsidiary, as the case may be,
(B) such Lien shall not apply to any other property or assets of
Level 3 or any Restricted Subsidiary and (C) such Lien shall secure
only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Restricted Subsidiary,
as the case may be, and extensions, renewals and replacements thereof
that do not increase the outstanding principal amount thereof;
(v) Liens, including pursuant to any Capital Lease Obligation, on
fixed or capital assets (other than Synergy Sites) acquired,
constructed, installed developed or improved by Level 3 or any
Restricted Subsidiary; provided that (A) such security interests
secure Indebtedness permitted by clause (vi) of Section 6.01(a),
(B) such security interests and the Indebtedness secured thereby are
incurred prior to or within 270 days after such acquisition or the
completion of such construction or improvement, installation or
development, (C) the Indebtedness secured thereby does not exceed 100%
of the cost of acquiring, constructing, installing developing or
improving such fixed or capital assets and (D) such security interests
shall not apply to any other property or assets of Level 3 or any
Restricted Subsidiary (it being understood that all indebtedness to
any single lender or group of related lenders or outstanding under any
single credit facility, and in any case relating to the same group or
collection of Telecommunications Assets financed thereby, shall be
considered a single purchase money indebtedness, whether drawn at one
time or from time to time);
(vi) Liens on the Specified Real Estate and the London Properties
securing indebtedness permitted under clause (vii) of Section 6.01(a)
and any refinancings thereof permitted by clause (xi) of
Section 6.01(a); provided that such Liens do not extend to other
properties or assets (other than Telecom Building Fixtures);
(vii) Liens securing Indebtedness of Level 3 to any Restricted
Subsidiary and of any Restricted Subsidiary (other than an Equipment
Borrower) to any Subsidiary Loan Party;
(viii) Liens on assets (other than Capital Stock) of Foreign
Subsidiaries securing Indebtedness of such Foreign Subsidiaries
permitted under clause (xv) of Section 6.01(a);
(ix) Liens on any portion of a domestic colocation facility owned
or operated by a Colocation Subsidiary and subject to a Colocation
Lease by Level 3 or any Restricted Subsidiary to secure obligations of
Level 3 or such Restricted Subsidiary under such Colocation Lease; and
(x) other Liens, including in respect of sale leaseback
transactions; provided that neither the aggregate book value of the
assets subject to such Liens does not nor the aggregate Indebtedness
secured thereby at any time exceeds 2% of Combined Total Assets;
provided, that, notwithstanding the foregoing, Level 3 and the Borrowers will
not and will not permit any Restricted Subsidiary to create, incur, assume or
permit to exist any Lien (other than Liens permitted by clauses (ii) and (iv)
above or, with respect to real estate and Telecom Equipment Assets acquired
after the date hereof (other than Synergy Sites with a fair market value not in
excess of $7,000,000), clause (v) above) on any real estate (other than
Specified Real Estate or the London Properties) or on any Telecom Equipment
Assets located at, incorporated in, or attached to, such real estate (including
fixtures), that has an aggregate fair market value in excess of $500,000;
provided that the foregoing proviso shall not apply to sale-leasebacks in
respect of real estate having an aggregate fair market value for all real estate
subject to such sale-leasebacks not to exceed $50,000,000 at the time any such
sale-leaseback is entered into.
(b) No Equipment Borrower will create, incur, assume or permit to exist
any Lien on any property or asset now or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in respect
thereof, except Liens created under the Loan Documents and Permitted
Encumbrances.
SECTION 6.03. Fundamental Changes. (a) Neither Level 3 nor any Borrower
will, nor will they permit any Restricted Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person (other than a Borrower or Finance) may
merge into Level 3 in a transaction in which Level 3 is the surviving
corporation, (ii) any Person (other than Level 3, a Borrower or Finance) may
merge into any Restricted Subsidiary (other than an Equipment Borrower) in a
transaction in which the surviving entity is a Wholly Owned Restricted
Subsidiary and, in the case of any such transaction involving a Loan
Party, a Loan Party and (iii) any Restricted Subsidiary (other than an Equipment
Borrower) may liquidate or dissolve if Level 3 determines in good faith that
such liquidation or dissolution is in the best interests of Level 3 and is not
materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a Wholly Owned Restricted Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by
Section 6.05. Under no circumstances whatsoever will Level 3 or any Borrower
permit any liquidation or dissolution of Finance, any merger involving Finance
or any other transaction in which Finance shall cease to exist or as a result of
which another Person shall own assets that prior thereto constituted all or
substantially all the assets of Finance.
(b) Level 3 will not, and will not permit any of the Restricted
Subsidiaries to, engage to any material extent in any business other than a
Telecommunications Business or any businesses of the type conducted by Level 3
and the Restricted Subsidiaries on the date of execution of this Agreement and
businesses reasonably related thereto.
(c) Except as expressly set forth in Section 6.06(c) and (d), Level 3 will
not permit any Restricted Subsidiary to merge or consolidate with any other
Person, issue or sell shares of its Capital Stock or take any other action if as
a result thereof such Restricted Subsidiary would cease to be a Wholly Owned
Restricted Subsidiary of Level 3.
SECTION 6.04. Sale and Lease-Back Transactions. Level 3 and the Borrowers
will not, nor will they permit any Restricted Subsidiary to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose as the
property being sold or transferred, except to the extent all Capital Lease
Obligations, Attributable Debt and Liens associated with such sale and
lease-back transaction are permitted by Sections 6.01 and 6.02 (treating the
property subject thereto as being subject to a Lien securing the related
Attributable Debt, in the case of a sale and lease-back not accounted for as a
Capital Lease Obligation).
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions.
Level 3 and the Borrowers will not, and will not permit any of the Restricted
Subsidiaries to make or permit to exist any Investment in any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) Investments existing on the date hereof and set forth on
Schedule 6.05;
(c) Investments by Level 3 and the Restricted Subsidiaries in the
Capital Stock or capital of Restricted Subsidiaries that are Loan
Parties (other than the Equipment Borrowers); provided that such
shares of Capital Stock shall be pledged pursuant to the Shared
Collateral Pledge Agreement;
(d) loans or advances made by Level 3 to any Restricted
Subsidiary (other than any Equipment Borrower or any Foreign
Subsidiary) and made by any Restricted Subsidiary to Level 3 or any
other Restricted Subsidiary (other than any Equipment Borrower or any
Foreign Subsidiary); provided that such loans and advances shall be
evidenced by a promissory note pledged pursuant to the Shared
Collateral Pledge Agreement;
(e) Permitted Business Acquisitions;
(f) Investments by Level 3 or any Restricted Subsidiary in joint
ventures, Foreign Subsidiaries, Unrestricted Subsidiaries and other
Persons that are not Loan Parties which are acquired for consideration
consisting of (i) common stock of Level 3 or Non-Cash Pay Preferred
Stock of Level 3, (ii) Equity Proceeds or Conversion Proceeds received
after the date hereof not applied to any other Designated Equity
Proceeds Use, (iii) telecommunications or broadband services
(including colocation services) and (iv) in the case of a joint
venture, Foreign Subsidiary, Unrestricted Subsidiary or other Person
created to comply with foreign ownership requirements of a
jurisdiction located outside the United States, telecommunication
assets located in such foreign jurisdiction; provided, however, that
any loans or advances by Level 3 or any Restricted Subsidiary to
Foreign Subsidiaries to finance the acquisition of any such
telecommunications assets shall be evidenced by demand notes pledged
to the Agent in accordance with paragraph (j) of this Section 6.05;
(g) Investments by Level 3 or any Restricted Subsidiary in
Unrestricted Subsidiaries, including Whitney Holding Corp. ("Whitney")
in an aggregate amount not to exceed $475,000,000 less the amount of
Net Proceeds received from any mortgage or sale leaseback financings
of the Specified Real Estate owned by Whitney;
(h) Investments by Level 3 or any Restricted Subsidiary in joint
ventures, Foreign Subsidiaries and other Persons that are not Loan
Parties (other than Unrestricted Subsidiaries), in an aggregate
cumulative amount not at any time in excess of 6% of Combined Total
Assets as of the fiscal quarter most recently ended;
(i) [omitted];
(j) Loans by Level 3 or any Restricted Subsidiary to Foreign
Subsidiaries that are Restricted Subsidiaries, provided that such
loans are evidenced by demand notes pledged to the Agent under the
Shared Collateral Pledge Agreement for the benefit of the Shared
Collateral Secured Parties;
(k) Investments by Level 3 or any Restricted Subsidiary in an
Equipment Borrower to the extent consistent with maintaining the
capitalization of such Equipment Borrower required under
Section 6.14(h) (taking into account anticipated Term Loan Borrowings
and the Incremental Borrowings and the use of proceeds thereof);
(l) Guarantees constituting Indebtedness permitted by
Section 6.01;
(m) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(n) loans, advances or extensions of credit to employees and
directors made in the ordinary course of business and consistent with
past practice;
(o) Investments in prepaid expenses;
(p) negotiable instruments held for collection and lease, utility
and workers' compensation, performance and other similar deposits in
the ordinary course of business;
(q) Investments received as a result of asset sales permitted
under this Agreement;
(r) Loans in an amount not to exceed $1,900,000,000 by Level 3
International, Inc. ("International") to a wholly owned Foreign
Subsidiary of International organized under the laws of the
Netherlands that is a Restricted Subsidiary ("Dutch BV 1"), a portion
of the proceeds of which may be loaned by Dutch BV 1 to a wholly owned
Foreign Subsidiary of Dutch BV 1 organized under the laws of the
Netherlands that is a Restricted Subsidiary ("Dutch BV 2"), and the
remainder of the proceeds of which shall, together with the proceeds
loaned to Dutch BV 2, be contributed by Dutch BV 1 and Dutch BV 2 to
the equity of a Foreign Subsidiary that is a Restricted Subsidiary
("Dutch CV") wholly owned by Dutch BV 1 and Dutch BV 2, which shall
loan the entire proceeds of such contributions to a wholly owned
Foreign Subsidiary of Dutch CV organized under the laws of the
Netherlands that is a Restricted Subsidiary ("Dutch BV 3"), which, in
turn, shall loan such proceeds to one or more Foreign Subsidiaries
that are operating companies and Restricted Subsidiaries (the "Foreign
Opcos"); provided that (i) the Indebtedness of the Foreign Opcos to
Dutch BV 3 shall be evidenced by demand notes and pledged by Dutch BV
3 to Dutch CV to secure the Indebtedness of Dutch BV 3 to Dutch CV;
(ii) Dutch CV shall be prohibited by its organizational documents from
incurring any Indebtedness and from entering into any business other
than, in addition to Investments otherwise permitted under this
Section 6.05, lending not more than $1,900,000,000 to Dutch BV 3 as
contemplated by this Section 6.05(r) and lending not more than
$1,000,000,000 to Holdings BV as contemplated by Section 6.05(s);
(iii) 65% of the voting Capital Stock and 100% of the nonvoting
Capital Stock of Dutch CV shall be pledged by Dutch BV 1 and Dutch BV
2 to the Collateral Agent for the benefit of the Secured Parties under
the Shared Collateral Pledge Agreement; (iv) each of Dutch BV 1 and
Dutch BV 2 shall become a Loan Party under the Credit Agreement and
satisfy the Collateral and Guarantee Requirement; (v) the
Indebtedness, if any, of Dutch BV 2 to Dutch BV 1 shall be evidenced
by demand notes and pledged by Dutch BV 1 to the Collateral Agent for
the benefit of the Secured Parties under the Shared Collateral Pledge
Agreement; and (vi) the Indebtedness of Dutch BV 1 to International
shall be evidenced by demand notes and pledged by International to the
Collateral Agent for the benefit of the Secured Parties under the
Shared Collateral Pledge Agreement;
(s) Loans in an amount not to exceed $1,000,000,000 by
International to Dutch BV 1, a portion of the proceeds of which may be
loaned by Dutch BV 1 to Dutch BV 2, and the remainder of the proceeds
of which shall, together with the proceeds loaned to Dutch BV 2, be
contributed by Dutch BV 1 and Dutch BV 2 to the equity of Dutch CV,
which shall loan the entire proceeds of such contributions to its
wholly owned subsidiary Level 3 Holdings, B.V. (Netherlands)
("Holdings BV"), which, in turn, shall contribute such proceeds to the
equity of the Foreign Opcos; provided that (i) Holdings BV shall
pledge all such Investments in the Foreign Opcos to Dutch CV to secure
the Indebtedness of Holdings BV to Dutch CV; (ii) Dutch CV shall be
prohibited by its organizational documents from incurring any
Indebtedness and from entering into any business other than, in
addition to Investments otherwise permitted under this Section 6.05,
lending not more than $1,000,000,000 to Holdings BV as contemplated by
this Section 6.05(s) and lending not more than $1,900,000,000 to Dutch
BV 3 as contemplated by Section 6.05(r); (iii) 65% of the voting
Capital Stock and 100% of the nonvoting Capital Stock of Dutch CV
shall be pledged by Dutch BV 1 and Dutch BV 2 to the Collateral Agent
for the benefit of the Secured Parties under the Shared Collateral
Pledge Agreement; (iv) each of Dutch BV 1 and Dutch BV 2 shall become
a Loan Party under the Credit Agreement and satisfy the Collateral and
Guarantee Requirement; (v) the Indebtedness, if any, of Dutch BV 2 to
Dutch BV 1 shall be evidenced by demand notes and pledged by Dutch BV
1 to the
Collateral Agent for the benefit of the Secured Parties under the
Shared Collateral Pledge Agreement; and (vi) the Indebtedness of Dutch
BV 1 to International shall be evidenced by demand notes and pledged
by International to the Collateral Agent for the benefit of the
Secured Parties under the Shared Collateral Pledge Agreement; and
(t) the direct or indirect contribution by International of the
equity of Holdings BV to the capital of Dutch CV.
Notwithstanding the foregoing:
(i) no Equipment Borrower will make any investment other than
investments in (A) Telecommunications Assets not consisting of Capital
Stock and (B) Permitted Investments;
(ii) no Investment in any other Person or purchase or other
acquisition (in one transaction or a series of transactions) of any
assets of any other Person constituting a business unit under clause
(e), (f), (g) or (h) shall be made unless Level 3 and the Subsidiaries
are in compliance, on a pro forma basis after giving effect to such
acquisition or investment (without giving effect to operating expense
reductions), with the financial covenants contained in Section 6.14,
to the extent then applicable, as if such acquisition had occurred on
the first day of the relevant period for testing compliance; and
(iii) the aggregate amount of acquisitions of or Investments by
Level 3 or any Restricted Subsidiary in Unrestricted Subsidiaries made
after July 18, 2002, shall not when taken together with the aggregate
amount of Investments made or deemed to be made by Level 3 or any
Restricted Subsidiary in connection with Designations of Subsidiaries
as Unrestricted Subsidiaries (determined as if each such Designation
were an Investment) after July 18, 2002, exceed $200,000,000
outstanding at any time.
SECTION 6.06. Asset Sales. Level 3 and the Borrowers will not, and will not
permit any of the Restricted Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Capital Stock, nor will Level 3 permit any
of the Restricted Subsidiaries to issue any additional shares of its Capital
Stock or other ownership interest in such Restricted Subsidiary, except:
(a) sales of inventory (including dark fiber and conduits), used or
surplus equipment and Permitted Investments in the ordinary course of
business;
(b) sales, transfers, leases and dispositions to Level 3 or a
Restricted Subsidiary; provided that any such sales, transfers or
dispositions involving a Restricted Subsidiary that is not a Loan Party
shall be made in compliance with Section 6.09;
(c) issuances of directors' qualifying shares and issuances of a de
minimus number of shares of Capital Stock of Foreign Restricted
Subsidiaries, in each case as required by applicable law; and
(d) sales, transfers, leases and dispositions of assets (including
Capital Stock of Unrestricted Subsidiaries and 100% of the Capital Stock of
Restricted Subsidiaries, but excluding Capital Stock of Finance and, until
such time as the Term Loans are repaid or prepaid in full, BTE) that are
not permitted by any other clause of this Section; provided that the Net
Proceeds therefrom are utilized by Level 3 or a Restricted Subsidiary in
accordance with the provisions of Sections 2.11 and 6.05 to acquire
Telecommunications Assets, effect Permitted Business Acquisitions or repay
Term Loans;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than issuances of Capital Stock of Foreign Restricted Subsidiaries
solely permitted by clause (c) of this Section) shall be made for fair market
value and solely for consideration at least 75% of which consists of cash or
Telecommunications Assets or of Capital Stock of Persons engaged in the
Telecommunications Business; provided the aggregate amount of all such Capital
Stock of Persons engaged in the Telecommunications Business (other than Persons
that become Restricted Subsidiaries as a result of the receipt of such Capital
Stock) received as part of such 75% consideration for all such sales, transfers,
leases and other dispositions during the term of this Agreement does not exceed
$50,000,000.
SECTION 6.07. Hedging Agreements. Level 3 and the Borrowers will not, and
will not permit any of the Restricted Subsidiaries to, enter into any Hedging
Agreement, other than (a) Hedging Agreements required by Section 5.14 and (b)
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which Level 3 or any Restricted Subsidiary is exposed in the
conduct of its business or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. (a)
Neither Level 3 nor the Borrowers will, nor will they permit any Restricted
Subsidiary to, declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment, except (i) Level 3 may declare and pay dividends with
respect to its Capital Stock payable solely in additional shares of its common
stock or its Non-Cash Pay Preferred Stock and Level 3 may issue shares of common
stock or Non-Cash Pay Preferred Stock upon conversion or
repurchase of any convertible Indebtedness (including the 6.0% Convertible
Subordinated Notes Due 2009) of Level 3, (ii) Restricted Subsidiaries may
declare and pay dividends ratably to holders of their Capital Stock (other than
Level 3), (iii) Level 3 may make Restricted Payments, pursuant to and in
accordance with stock option plans or other benefit plans for management or
employees of Level 3 and the Restricted Subsidiaries from Equity Proceeds and
Conversion Proceeds received after the date hereof and not applied to any other
Designated Equity Proceeds Use and, to the extent not made with such Equity
Proceeds and Conversion Proceeds, in an aggregate amount not in excess of
$3,000,000 during any 12-month period, (iv) Restricted Subsidiaries may pay
dividends to Level 3 at such times and in such amounts as shall be necessary to
permit Level 3 to pay administrative expenses attributable to the operations of
the Restricted Subsidiaries, (v) Restricted Subsidiaries may pay dividends to
Level 3 at such times and in such amounts as are sufficient for Level 3 (A) to
make the timely payment of interest, premium (if any) and principal (whether at
stated maturity, by way of a sinking fund applicable thereto, by way of any
mandatory redemption, defeasance, retirement or repurchase thereof, including
upon the occurrence of designated events or circumstances or by virtue of
acceleration upon an event of default, or by way of redemption or retirement at
the option of the holder of the Indebtedness under the Level 3 Indentures or
senior, unsubordinated Permitted Debt permitted by Section 6.01(a)(ii), as
applicable, including pursuant to offers to purchase) according to the terms of
the Level 3 Indentures or such senior unsubordinated Permitted Debt permitted by
Section 6.01(a)(ii), as applicable, and (B) so long as no Default exists or
would result therefrom, to make timely payment of interest on subordinated
Permitted Debt permitted by Section 6.01(a)(ii), provided that the payment of
such interest is not, at the time such dividend is paid, prohibited by the
subordination provisions applicable to such Permitted Debt, (vi) Level 3 may pay
cash dividends on its preferred stock in a cumulative amount not in excess of
the Equity Proceeds and Conversion Proceeds received after the date hereof which
have not been applied to any other Designated Equity Proceeds Use, (vii) so long
as (A) no Default exists and (B) Level 3's Leverage Ratio did not exceed 4.0 to
1.0 as of the most recent date for which financial statements have been
delivered pursuant to Section 5.01(a) or (b), Level 3 may make Restricted
Payments in any year in an aggregate amount not to exceed 50% of Combined Net
Income for the prior fiscal year, (viii) Restricted Subsidiaries may pay
dividends to Level 3 at such times and in such amounts as shall be necessary to
permit Level 3 to make Restricted Payments then being made in compliance with
clauses (iii), (vi), and (vii) of this Section 6.08(a) and to make the cash
payments referred to in clause (iv) of the exceptions to Section 6.08(b) and
(ix) Level 3 may make cash payments in an aggregate amount not to exceed
$20,000,000 for fractional shares in connection with a reverse stock split of
the common stock of Level 3 or for fractional shares in connection with the
conversion of preferred stock of Level 3 into common stock of Level 3.
(b) Neither Level 3 nor the Borrowers will, nor will they permit any
Subsidiary to (i) ake or agree to pay or make, directly or indirectly, any
voluntary payment or other
distribution (whether in cash, securities or other property) of or in respect of
principal of or interest on any unsecured Indebtedness or any subordinated
Indebtedness, or any payment or other distribution (whether in cash, securities
or other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancelation or termination of
any such Indebtedness or (ii) any payment to any Derivatives Counterparty as a
result of any change in the market value of any such Indebtedness that is
publicly traded (provided, that (A) no payment shall be deemed to have been made
to any Derivatives Counterparty to the extent Derivatives Counterparties have
made cumulative payments to Level 3 or any Restricted Subsidiary as a result of
changes in the market value of such publicly traded Indebtedness in a cumulative
amount in excess of the payments made to Derivatives Counterparties by Level 3
and the Restricted Subsidiaries as a result of such changes and (B) it is
understood that the intent of the above language relating to payments to and
from Derivatives Counterparties is to prohibit payments and distributions
pursuant to transactions entered into with Derivatives Counterparties only if
Level 3 intends such transactions to have substantially the same economic effect
as the payments and distributions referred to in clause (a) above), except:
(1) payment of regularly scheduled interest and principal payments as
and when due in respect of any Indebtedness, other than payments in respect
of the subordinated debt prohibited by the subordination provisions
thereof;
(2) refinancings of Indebtedness to the extent permitted by
Section 6.01(xi);
(3) payments to redeem outstanding Indebtedness pursuant to the
exercise of certain rights of the holders of such Indebtedness to require
the repurchase of such Indebtedness arising in the event of a change in
control of Level 3 specified in Section 10.09 of each of the Indentures
relating to such Indebtedness or substantially similar provisions as may be
contained in future indentures governing unsecured indebtedness issued by
Level 3 after the date hereof;
(4) so long as no Default or Event of Default exists or would result
therefrom, conversions of, exchanges for or purchases of Indebtedness of
Level 3 or any Restricted Subsidiary made solely with or into common stock
of Level 3 or preferred stock of Level 3 and cash payments of unpaid
interest accrued to the date of any such conversion, purchase or exchange
on such Indebtedness subject to such purchase or exchange;
(5) so long as no Default or Event of Default exists or would result
therefrom, payments in respect of principal of any unsecured Indebtedness
of Level 3 or any subordinated Indebtedness of Level 3, or any payment or
other distribution (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any such Indebtedness, in each case (x) to
the extent made with amounts available in the Debt Repurchases Basket prior
to giving effect thereto or (y) if made in an amount in excess of the
amount available in the Debt Repurchases Basket prior to giving effect
thereto, subject to the requirements of Section 2.11(b)(ii); and
(6) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, payments within 5 days after
incurrence of Indebtedness permitted by Section 6.01(a)(viii); provided
that all outstanding principal and accrued interest with respect to such
Indebtedness must be paid at such time.
(c) For the avoidance of doubt, it is understood and agreed that cash
payments made in respect of Indebtedness owned by a Person with the cash
proceeds of a substantially simultaneous issuance of common stock of Level 3 or
preferred stock of Level 3 to such Person shall be treated as an exchange of
such Indebtedness under clause (b)(4) above and will be deemed not to result in
any increase to the Debt Repurchases Basket under clause (a)(ii) of the
definition thereof or any reduction thereof or the creation of Equity Proceeds
for any purpose hereunder.
(d) Under no circumstances whatsoever will Level 3 or any Restricted
Subsidiary permit any Unrestricted Subsidiary after the Amendment Effectiveness
Date to make any payment described under paragraph (a), (b) or (c) above in
respect of any common stock, preferred stock or Indebtedness (other than
Indebtedness incurred hereunder) of Level 3 or any Restricted Subsidiary.
SECTION 6.09. Transactions with Affiliates. Neither Level 3 nor the
Borrowers will, nor will they permit any Restricted Subsidiary to, sell, lease
or otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions that are at
prices and on terms and conditions not less favorable to Level 3, such Borrower
or such Restricted Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties (or, in the event that there are no comparable
transactions involving Persons who are not Affiliates of Level 3 or the relevant
Restricted Subsidiary to apply for comparative purposes, is otherwise on terms
that, taken as a whole, are fair to Level 3 or the relevant Restricted
Subsidiary as determined by (i) with respect to a transaction or group of
related transactions of $5,000,000 or more, the board of directors or executive
committee of the board of directors of Level 3 including the affirmative vote of
at least one independent director and (ii) with respect to a transaction or
group of transactions of less than $5,000,000, an Executive Officer of Level 3),
(b) transactions between or among Level 3 and the Subsidiary
Loan Parties not involving any other Affiliate and (c) any Restricted Payment
permitted by Section 6.08 and (d) any agreement or arrangement with respect to
the compensation of a director or officer of Level 3 or any Restricted
Subsidiary approved by a majority of the disinterested members of the board of
directors and consistent with industry practice.
SECTION 6.10. Restrictive Agreements. Neither Level 3 nor any of the
Borrowers will, nor will they permit any Restricted Subsidiary to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of Level 3 or any Restricted Subsidiary to create, incur or permit to
exist any Lien upon any of its property or assets to secure the Obligations, or
(b) the ability of any Restricted Subsidiary to pay dividends or other
distributions with respect to any shares of its Capital Stock or to make or
repay loans or advances to Level 3 or any other Restricted Subsidiary or to
Guarantee Indebtedness of Level 3 or any other Restricted Subsidiary; provided
that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by any Loan Document or by the Level 3 Indentures or substantially
similar provisions as may be contained in future indentures governing unsecured
indebtedness issued by Level 3 after the date hereof, (ii) the foregoing shall
not apply to restrictions and conditions existing on the date hereof identified
on Schedule 6.10 (but shall apply to any extension or renewal of, or any
amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and
conditions contained in agreements relating to the sale of a Restricted
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Restricted Subsidiary that is to be sold and such sale is permitted
hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or
conditions imposed by any agreement relating to secured Indebtedness permitted
by this Agreement if such restrictions or conditions apply only to the property
or assets securing such Indebtedness, (v) clause (a) of the foregoing shall not
apply to customary provisions in leases, rights of way and franchises
restricting the assignment thereof and (vi) the foregoing shall not apply to the
restrictions in agreements governing Indebtedness permitted to be incurred by
Section 6.01(a)(viii) which is repaid in full within 5 days after the incurrence
thereof.
SECTION 6.11. Amendment of Material Documents. Neither Level 3 nor any of
the Borrowers will, nor will they permit any Restricted Subsidiary to, amend,
modify or waive any of its rights under (a) the Level 3 Indentures or (b) its
certificate of incorporation, by-laws or other organizational documents, in each
case in a manner adverse to the Lenders.
SECTION 6.12. Liabilities of Equipment Borrowers; Business and Liabilities
of Finance and Certain Foreign Subsidiaries. (a) Level 3 and the Borrowers will
not permit any Equipment Borrower (i) to incur, assume or permit to exist any
liabilities or obligations other than (x) liabilities and obligations under
(A) the Loan Documents, (B) the Master Lease Agreement and (C) contracts with
vendors for the purchase of Telecommunications Assets and
(y) ordinary course non-debt liabilities incidental to being a corporate entity,
such as taxes and administrative expenses, or (ii) to engage in any activity
other than purchasing Telecommunications Assets financed with cash on hand or
the proceeds of capital contributions or of the Term Loans and the Incremental
Loans, holding and leasing such Telecommunication Assets to operating
subsidiaries of Level 3 pursuant to the Master Lease Agreement and, with respect
to BTE, the sale of surplus or obsolete assets, subject to Section 6.12(c).
(b) Level 3 and the Borrowers will not (i) permit any Equipment Borrower to
have any subsidiaries or hold any Equity Interests in any Person or (ii) permit
any Equipment Borrower to lease or make available for use by any other Person
any Telecommunications Assets financed in whole or part with the proceeds of
Borrowings of Term Loans or Incremental Loans hereunder except pursuant to the
Master Lease Agreement, in the case of BTE, or a similar master lease agreement
of any other Equipment Borrower, in each case pledged to the Collateral Agent
for the benefit of the Lenders to such Equipment Borrower. The Master Lease
Agreement may provide for payments by the lessee thereunder, at the option of
the lessee, to accrue rather than to be made in cash.
(c) Level 3 and the Borrowers will not permit BTE to dividend, distribute,
sell, transfer or otherwise dispose of any cash or other asset to any other
Person; provided, however, that (i) BTE shall be permitted to dividend,
distribute, sell, transfer or otherwise dispose of no more than $30,000,000 per
year in the aggregate of surplus or obsolete assets that do not constitute
Collateral and that it would otherwise be permitted to transfer pursuant to the
terms of the Master Lease Agreement, and then only in the event that the Net
Proceeds received in connection with such distributions, sales, transfers or
disposals are promptly reinvested in other assets to be used and/or held at BTE,
and (ii) BTE shall be permitted to dividend, distribute, sell, transfer or
otherwise dispose of any surplus or obsolete assets that constitute Collateral,
provided that the Net Proceeds received in connection with such sale or disposal
are either (A) held in a deposit account of BTE that is subject to a Financial
Collateral Control Agreement, (B) reinvested by BTE in Telecommunications
Assets, provided that reinvestments made pursuant to this sub-clause (B) shall
be permitted only in the event that (1) the Net Proceeds used by BTE to reinvest
in Telecommunications Assets shall be held in a deposit account subject to a
Finance Collateral Control Agreement until such time as such reinvestment is
made, (2) such Telecommunications Assets are not purchased from Level 3, any of
its Subsidiaries or any of its other Affiliates, (3) such Telecommunications
Assets shall constitute "Collateral" under the Term Loan Security Agreement in
which the Collateral Agent has a perfected first-priority security interest and
(4) the Administrative Agent shall have received an opinion of outside counsel
for Level 3 with respect to all matters requested by the Administrative Agent or
its counsel and any other agreements, certificates or authorizations as the
Administrative Agent or its counsel may reasonably request or (C) used to prepay
a portion of the principal amount of Term Loans required to be repaid pursuant
to Sections 2.10(c) (d)
and (e) (which prepayments shall be applied in the manner set forth in Section
2.10(g)), provided that the Net Proceeds used by BTE to prepay Term Loans shall
be held in a deposit account subject to a Finance Collateral Control Agreement
until such time as such prepayment is made; and provided further, however, than
any such sales or transfers of surplus or obsolete assets made pursuant to
clauses (i) and (ii) of this Section 6.12 shall be made for fair market value on
arms' length terms; and provided further, however, that BTE shall not be
permitted to engage in any transaction permitted pursuant to clauses (i) and
(ii) of this Section 6.12(c) unless BTE would, after giving effect thereto, be
in compliance on a pro forma basis with the covenant set forth in Section
6.14(h) as of the last day of the most recent fiscal quarter for which financial
statements were required to have been delivered pursuant to paragraph (a) or (b)
of Section 5.01, determined as if such transaction had occurred immediately
prior to such day.
(d) Level 3 will not permit Finance (i) to incur, assume or permit to
exist any liabilities or obligations other than (x) liabilities and obligations
under the Finance Documents and (y) ordinary course non-debt liabilities
incidental to being a limited liability company, such as taxes and
administrative expenses or (ii) to engage in any activity other than holding and
investing in cash and Money Market Funds.
(e) Level 3 and the Borrowers will at all times cause Finance to maintain
in accounts held under Finance Collateral Control Agreements entered into with
the Collateral Agent cash and Money Market Funds that are pledged by Finance to
secure the Obligations in an aggregate amount not less than $400,000,000.
(f) Level 3 and the Borrowers will not permit (i) Dutch BV 1, Dutch BV 2,
Dutch CV, Holdings BV or Dutch BV 3 to incur, assume or permit to exist any
liabilities or obligations other than (x) Indebtedness under the Loan Documents,
in the case of Dutch BV 1 and Dutch BV 2, and intercompany indebtedness
specifically contemplated by Sections 6.05(r) and (s) and (y) ordinary course
non-debt liabilities incidental to being a corporate or partnership entity, such
as taxes and administrative expenses, or (ii) Dutch BV 1, Dutch BV 2, Dutch CV,
Holdings BV or Dutch BV 3 to engage in any activity other than borrowing and
lending funds, and making equity investments, specifically contemplated by (and
in the maximum amounts contemplated by) Sections 6.05(r) and (s).
SECTION 6.13. Designation of Unrestricted Subsidiaries. (a) Level 3 may
not designate any Restricted Subsidiary (other than a Colocation Subsidiary that
is not a Redesignated
Colocation Subsidiary) as an Unrestricted Subsidiary and may hereafter designate
any other Subsidiary (including a Colocation Subsidiary that is not a
Redesignated Colocation Subsidiary) as an Unrestricted Subsidiary under this
Agreement (a "Designation") only if at the time of Designation:
(i) such Subsidiary is a Colocation Subsidiary (other than a
Redesignated Colocation Subsidiary) or (x) is not engaged in any
Telecommunications Business in the United States, (y) does not own any
Capital Stock of any Restricted Subsidiary or any other entity engaged in
any Telecommunications Business in the United States and (z) does not own
or lease a material amount of Telecommunications Assets used in the United
States;
(ii) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such Designation;
(iii) after giving effect to such Designation and any related
Investment to be made in such designated Subsidiary by Level 3 or any
Restricted Subsidiary (which shall in any event include the existing
Investment in such Subsidiary at the time it is designated as an
Unrestricted Subsidiary and comply with the provisions of Section 6.05),
(A) Level 3 would be in compliance with each of the covenants set forth in
Section 6.14 calculated on a pro forma basis as if such Designation and
investment had occurred immediately prior to the first day of the period of
four consecutive fiscal quarters most recently ended in respect of which
financial statements have been delivered by Level 3 pursuant to
Section 5.01(a) or (b), and (B) in the case of any Designation after July
18, 2002, the amount of Investments made or deemed to be made by Level 3 or
any Restricted Subsidiary in connection with such Designation taken
together with the aggregate amount of all other Investments made or deemed
to be made by Level 3 or any Restricted Subsidiary in connection with
Designations of Subsidiaries as Unrestricted Subsidiaries (determined as if
each Designation were an Investment but taking into account the effects of
RS Designations in respect of such Designations) after July 18, 2002, and
the aggregate amount of all acquisitions of or Investments by Level 3 or
any Restricted Subsidiary in Unrestricted Subsidiaries made after July 18,
2002, shall not exceed $200,000,000 outstanding at any time;
(iv) Level 3 has delivered to the Administrative Agent (x) written
notice of such Designation and (y) a certificate, dated the effective date
of such Designation, of an Executive Officer stating that no Event of
Default has occurred and is continuing and setting forth reasonably
detailed calculations demonstrating pro forma compliance with Section 6.14
in accordance with paragraph (iii) above; and
(v) in respect of the Designation of a Colocation Subsidiary, such
Colocation Subsidiary has entered into an agreement with a Borrower or a
Restricted Subsidiary
providing that such Borrower or Restricted Subsidiary is the sole source
provider of broadband services to such Colocation Subsidiary (it being
understood that such Colocation Subsidiary is not obligated to offer
broadband services to its customers).
(b) Level 3 may designate any Unrestricted Subsidiary as a Restricted
Subsidiary under this Agreement (an "RS Designation") only if:
(i) such Subsidiary is predominantly engaged in one or more
Telecommunications Businesses;
(ii) no Event of Default shall have occurred and be continuing at the
time of or after giving effect to such RS Designation, and after giving
effect thereto, Level 3 would be in compliance with each of the covenants
set forth in Section 6.14 calculated on a pro forma basis as if such RS
Designation had occurred immediately prior to the first day of the period
of four consecutive fiscal quarters most recently ended in respect of which
financial statements have been delivered by Level 3 pursuant to
Section 5.01(a) or (b); and
(iii) all Liens on assets of such Unrestricted Subsidiary and all
Indebtedness of such Unrestricted Subsidiary outstanding immediately
following the RS Designation would, if initially incurred at such time,
have been permitted to be incurred pursuant to Sections 6.01 and 6.02
without reliance on Section 6.01(a)(viii) or Section 6.02(a)(iv).
Upon any such RS Designation with respect to an Unrestricted Subsidiary
(i) Level 3 and the Restricted Subsidiaries shall be deemed to have received a
return of their Investment in such Unrestricted Subsidiary equal to the lesser
of (x) the amount of such Investment immediately prior to such RS Designation
and (y) the fair market value (as reasonably determined by Level 3) of the net
assets of such Subsidiary at the time of such RS Designation and (ii) Level 3
and the Restricted Subsidiaries shall be deemed to have a permanent Investment
in an Unrestricted Subsidiary equal to the excess, if positive, of the amount
referred to in clause (i)(x) above over the amount referred to in clause (i)(y)
above.
(c) Neither Level 3 nor any Restricted Subsidiary shall at any time
(x) provide a Guarantee of any Indebtedness of any Unrestricted Subsidiary,
(y) be directly or indirectly liable for any Indebtedness of any Unrestricted
Subsidiary or (z) be directly or indirectly liable for any other Indebtedness
which provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon (or cause such Indebtedness or the payment thereof to
be accelerated, payable or subject to repurchase prior to its final scheduled
maturity) upon the occurrence of a default with respect to any other
Indebtedness that is Indebtedness of an Unrestricted Subsidiary, except in the
case of clause (x) or (y) to the extent permitted under
Section 6.01 and Section 6.05 hereof. Each Designation of a Restricted
Subsidiary shall be irrevocable. No Colocation Subsidiary may be redesignated as
a Restricted Subsidiary, otherwise become a Restricted Subsidiary, be merged
with or into Level 3 or a Restricted Subsidiary or liquidate into or transfer
substantially all its assets to Level 3 or a Restricted Subsidiary (an
"RS Redesignation") unless (i) at the time of such RS Redesignation such
Subsidiary shall have no Indebtedness outstanding, (ii) immediately following
such RS Redesignation the Collateral and Guarantee Requirement shall have been
satisfied (without reliance on the last paragraph thereof) with respect to such
Subsidiary and (iii) all Liens on assets of such Subsidiary immediately
following the RS Redesignation would, if initially incurred at such time, have
been permitted to be incurred pursuant to Section 6.02 without reliance on
Section 6.02(a)(iv).
(d) Unless the Required Lenders shall otherwise consent, neither Level 3
nor any Restricted Subsidiary shall make any payment to holders of Indebtedness
of a Colocation Subsidiary in respect of any Colocation Guarantee described in
clause (ii) of the definition thereof (other than a payment of (x) any amount
due under such Colocation Guarantee, other than in respect of principal or
interest, designated by Level 3 to be an investment in such Colocation
Subsidiary permitted pursuant to Section 6.05 or (y) any principal or interest
in an amount equal to less than all the outstanding principal and interest on
such Indebtedness), unless such Colocation Subsidiary is immediately thereafter
redesignated a Restricted Subsidiary in accordance with the provisions of this
Section 6.13.
(e) Finance shall at all times remain an Unrestricted Subsidiary under this
Agreement. Level 3 and the Borrowers shall ensure that Finance remains at all
times an "Unrestricted Subsidiary" under the Indentures and none of them shall,
or shall permit any Restricted Subsidiary to, take any action that could result
in Finance becoming a "Restricted Subsidiary" under any Indenture.
SECTION 6.14. Financial Covenants. Level 3 and the Borrowers will not:
(a) Minimum Intercity Route Miles Completed. (i) Permit the aggregate
number of Intercity Route Miles with Fiber Completed on and after June 30, 2001
to be less than 12,000.
(b) Minimum Markets with Fiber Networks. Permit the number of Markets With
Fiber Networks owned by Level 3 and the Restricted Subsidiaries to be less than
20.
(c) [omitted]
(d) Combined Total Debt to Contributed Capital. Permit the ratio of
Combined Total Debt to Contributed Capital on any date during any period set
forth below to exceed the ratio set forth opposite such period:
Amendment Effectiveness Date - December 31, 2002 75.0%
January 1, 2003 - December 31, 2003 75.0%
January 1, 2004 - December 31, 2004 75.0%
January 1, 2005 - and thereafter 70.0%
(e) [omitted]
(f) Combined Senior Secured Debt to Combined Gross PPE. Permit the ratio of
Combined Senior Secured Debt to Combined Gross Property, Plant and Equipment on
any date to exceed 50%.
(g) Total Leverage. Permit the Leverage Ratio, on any date, to exceed the
ratio opposite the period below in which such date occurs:
Period Ratio
June 30, 2004 - September 29, 2004 11.5 to 1.00
September 30, 2004 - December 30, 2004 11.0 to 1.00
December 31, 2004 - March 30, 2005 10.0 to 1.00
March 31, 2005 - June 29, 2005 9.0 to 1.00
June 30, 2005 - September 29, 2005 7.5 to 1.00
September 30, 2005 - December 30, 2005 7.0 to 1.00
December 31, 2005 - March 30, 2006 6.0 to 1.00
March 31, 2006 - June 29, 2006 5.5 to 1.00
June 30, 2006 - September 29, 2006 5.0 to 1.00
September 30, 2006 - December 30, 2006 5.0 to 1.00
December 31, 2006 and thereafter 4.5 to 1.00
(h) BTE's Debt to BTE Adjusted Assets. Permit the ratio of (i) the
difference between (A) the aggregate outstanding principal amount of Term Loans
and (B) the aggregate amount of cash and marketable securities in the form of
Permitted Investments that are pledged by Finance to secure the Obligations and
held under Finance Collateral Control Agreements entered into with the
Collateral Agent to (ii) BTE Adjusted Assets to exceed 1.00 to 1.00 as of the
last day of any fiscal quarter; provided that no breach of this paragraph (h)
shall be deemed to have occurred unless the failure to meet the required ratio
shall not have been remedied by the prepayment of Term Loans or the contribution
of additional assets to BTE on or prior to the 30th day after the last day of
the applicable fiscal quarter.
(i) Minimum Cash Balance. (x) Permit the Combined Cash Balances as of any
weekly testing date to be less than $450,000,000.
(y) Permit the Combined Cash Balances as of any weekly testing date to be
less than the difference (the "Adjusted Minimum") at such time between (A)
$525,000,000 and (B) the excess, if any, of (x) the aggregate principal amount
of Term Loans prepaid under Section 2.11(b) and (c) on or after the Amendment
Effectiveness Date over (y) $200,000,000; provided that no breach of this
paragraph (i)(b) shall be deemed to have occurred with respect to (1) the first
occasion on which the Combined Cash Balances are less than the Adjusted Minimum,
if the Combined Cash Balances exceed the Adjusted Minimum on or prior to the
date that is six months after the first weekly testing date on which the
Combined Cash Balances are less than the Adjusted Minimum, or (2) any occasion
following the cure of the shortfall referred to in clause (1) on which the
Combined Cash Balances are less than the Adjusted Minimum, if (I) the Combined
Cash Balances exceeded the Adjusted Minimum on each of the 365 days prior to the
first weekly testing date on such subsequent occasion on which the Combined Cash
Balances are less than the Adjusted Minimum and (II) the Combined Cash Balances
exceed the Adjusted Minimum on or prior to the date that is six months after the
first weekly testing date on such subsequent occasion on which the Combined Cash
Balances are less than the Adjusted Minimum.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable by it under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of Level 3, any Borrower or any Restricted Subsidiary in or in connection
with any Loan Document or any amendment or modification thereof or waiver
thereunder, or in any report, certificate, financial statement or other
document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect in any material respect when made or deemed made;
(d) Level 3 or any Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of Level 3 or any Borrower) or 5.11 or in
Article VI;
(e) any Loan Party or other pledgor or grantor of a security interest
shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a),
(b) or (d) of this Article), and such failure shall continue unremedied for
a period of 30 days after notice thereof from the Administrative Agent to
Level 3 (which notice will be given at the request of any Lender);
(f) Level 3 or any Restricted Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due
and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of Level 3, any Borrower or any Significant Subsidiary or
its debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Level 3 or any
Restricted Subsidiary or for a substantial part of its assets, and, in any
such case, such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) Level 3, any Borrower or any Significant Subsidiary shall
(i) voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Level 3 or any Restricted Subsidiary or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) Level 3, any Borrower or any Significant Subsidiary shall become
unable, admit in writing its inability or fail generally to pay its debts
as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $25,000,000 shall be rendered against Level 3, any
Restricted Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of Level 3, or any
Restricted Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in liability of Level 3
and the Subsidiaries in an aggregate amount exceeding $25,000,000 for all
periods;
(m) any Lien purported to be created under this Agreement or any
Security Document shall cease to be, or shall be asserted by any Loan Party
not to be, a valid and perfected Lien on any Collateral (other than
immaterial portions of Collateral), with the priority required by this
Agreement or the applicable Security Document, except (i) as a result of
the sale or other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents or (ii) as a result of the Agent's
failure to maintain possession of any stock certificates, promissory notes
or other instruments delivered to it under this Agreement or the applicable
Security Document; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to a Borrower or
Level 3 described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrowers
take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and thereupon
the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrowers
accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; and in case of any event with respect to Level 3
or a Borrower described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers.
ARTICLE VIII
The Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Agent as its agent and authorizes the Agent to take such actions on its behalf
and to exercise such powers as are delegated to the Agent by the terms of the
Loan Documents and the Finance Documents, together with such actions and powers
as are reasonably incidental thereto.
The bank serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Level 3, the Borrower or any Subsidiary or other Affiliate thereof as if it were
not the Agent hereunder.
It is understood that no Syndication Agent shall have any duties or
obligations under this Agreement (other than in its capacity as a Lender). The
Agent shall not have any duties or obligations except those expressly set forth
in the Loan Documents and the Finance Documents. Without limiting the generality
of the foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents and the Finance Documents that the
Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth in the Loan Documents and the Finance Documents, the Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to Level 3, the Borrowers or any of the Subsidiaries that
is communicated to or obtained by the bank serving as Agent or any of its
Affiliates in any capacity. The Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or wilful misconduct. The Agent shall not be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Agent by Level 3, a Borrower or a Lender, and the Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document or Finance
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or Finance Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document or Finance
Document, other than to confirm receipt of items expressly required to be
delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing believed by it to be genuine and to have
been signed or sent by the proper Person. The Agent also may rely upon any
statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. The Agent
may consult with legal counsel (who may be counsel for Level 3 or the
Borrowers), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Agent may perform any and all its duties and exercise its rights and
powers by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory
provisions of the preceding paragraphs shall apply to any such sub-agent and to
the Related Parties of each Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor the Agent as
provided in this paragraph, the Agent may resign at any time by notifying the
Lenders, the Issuing Bank and Level 3. Upon any such resignation, the Required
Lenders shall have the right, with, so long as no Default or Event of Default
shall have occurred and be continuing, the consent of Level 3 (which consent
shall not be unreasonably withheld or delayed) to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders and
the Issuing Bank, appoint a successor Agent which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by Level 3 and the Borrowers to a
successor Agent shall be the same as those payable to its predecessor unless
otherwise agreed with such successor. After the Agent's resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or Finance Document or related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to Level 3 or a Borrower, to it at Level 3 Communications,
Inc., 1025 Eldorado Boulevard, Broomfield, Colorado 80021, Attention of
Chief Financial Officer and General Counsel;
(b) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase Manhattan, 8th Floor, New York, New York
10081, Attention of Gloria Javier (Telecopy No. (212) 552-5700), with a
copy to JPMorgan Chase Bank, 270 Park Avenue, New York 10017, Attention of
Mary Ellen Egbert (Telecopy No. (212) 270-0453), with a copy to JPMorgan
Chase Bank, 270 Park Avenue, New York, NY 10017, Attention of Ann Kurinskas
(Telecopy No. (212) 270-0453), with a copy to JPMorgan Chase Bank, 575
Washington Blvd., Jersey City, NJ 07310, Attention of Doug Ogle (Telecopy
No. (201) 595-6777);
(c) if to the Issuing Bank, to it at JPMorgan Chase Bank, Loan and
Agency Services Group, One Chase Manhattan, 8th Floor, New York, New York
10081, Attention of Gloria Javier (Telecopy No. (212) 552-5700), with a
copy to JPMorgan Chase Bank, 270 Park
Avenue, New York 10017, Attention of Mary Ellen Egbert (Telecopy No.
(212) 270-0453), with a copy to JPMorgan Chase Bank, 270 Park Avenue,
New York, NY 10017, Attention of Ann Kurinskas (Telecopy No. (212)
270-0453), with a copy to JPMorgan Chase Bank, 575 Washington Blvd.,
Jersey City, NJ 07310, Attention of Doug Ogle (Telecopy No. (201)
595-6777);
(d) if to the Swingline Lender, to it at JPMorgan Chase Bank,
Loan and Agency Services Group, One Chase Manhattan, 8th Floor, New
York, New York 10081, Attention of Gloria Javier (Telecopy No. (212)
552-5700), with a copy to JPMorgan Chase Bank, 270 Park Avenue, New
York 10017, Attention of Mary Ellen Egbert (Telecopy No. (212)
270-0453), with a copy to JPMorgan Chase Bank, 270 Park Avenue, New
York, NY 10017, Attention of Ann Kurinskas (Telecopy No. (212)
270-0453), with a copy to JPMorgan Chase Bank, 575 Washington Blvd.,
Jersey City, NJ 07310, Attention of Doug Ogle (Telecopy No. (201)
595-6777);
(e) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document or Finance Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Issuing Bank and the Lenders hereunder and under the
other Loan Documents and the Finance Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or Finance Document or consent to any
departure by any Loan Party or Finance therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document or Finance Document
nor any provision hereof or thereof may be waived, amended or modified except,
in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by Level 3, the Borrowers and the Required Lenders or, in the case
of any other Loan Document or Finance Document, pursuant to an agreement or
agreements in writing entered into by the Administrative Agent and the Loan
Party or Loan Parties that are parties thereto or, in the case of any Finance
Document, Finance, in each case with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender affected thereby, (iv) change Section 2.19(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of "Required Lenders" or any other provision of
any Loan Document specifying the number or percentage of Lenders (or Lenders of
any Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent of
each Lender (or each Lender of such Class, as the case may be), (vi) release
Level 3 or any other Guarantor from its Guarantee under either Guarantee
Agreement (except as expressly provided in such Guarantee Agreement), or limit
its liability in respect of any such Guarantee, without the written consent of
each Lender, (vii) release all or any substantial part of the Collateral from
the Liens of the Security Documents or the Finance Documents other than in
connection with any sale of Collateral permitted by this Agreement, without the
written consent of each Lender, (viii) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders holding
a majority in interest of the outstanding Loans and unused Commitments of each
affected Class or (ix) change the rights of the Tranche B Lenders and the
Tranche C Lenders to decline mandatory prepayments as provided in Section 2.11,
without the written consent of Tranche B Lenders holding a majority of the
outstanding Tranche B Loans or the Tranche C Lenders holding a majority of the
outstanding Tranche C Loans, as the case may be; provided further that (A) no
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent, the Issuing Bank or the Swingline Lender without the
prior written consent of the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, (B) any waiver, amendment or modification
of this Agreement that by its terms affects the rights or duties under this
Agreement of the Revolving Lenders (but not the Tranche A Lenders, the Tranche B
Lenders and Tranche C Lenders), the Tranche A Lenders (but not the Revolving
Lenders, the Tranche B Lenders and Tranche C Lenders), the Tranche B Lenders
(but not the Revolving Lenders, the Tranche A Lenders and Tranche C Lenders) and
the Tranche C
Lenders (but not the Revolving Lenders, the Tranche A Lenders and the Tranche B
Lenders) may be effected by an agreement or agreements in writing entered into
by Level 3, the Borrowers and requisite percentage in interest of the affected
Class of Lenders and (C) for the avoidance of doubt, the Loan Allocation
Agreement may be waived or amended only in accordance with the terms thereof.
(c) If, in connection with any proposed change, waiver, discharge or
termination of any of the provisions of this Agreement as contemplated by
clauses (i) through (vii), inclusive, of the first proviso to Section 9.02(b),
the consent of the Required Lenders is obtained but the consent of one or more
of such other Lenders whose consent is sought is not obtained, then the
Borrowers shall have the right, so long as all non-consenting Lenders whose
individual consent is sought are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more replacement Lenders in accordance with the provisions of
Section 2.20(b) so long as at the time of such replacement, each such
replacement Lender consents to the proposed change, waiver, discharge or
termination or (B) terminate each such non-consenting Lender's Commitments and
repay the outstanding Loans of each such non-consenting Lender in accordance
with Sections 2.08 and 2.11, provided that, unless the Commitments that are
terminated and the Loans that are repaid pursuant to preceding clause (B) are
immediately replaced in full at such time through the addition of new Lenders or
the increase of the Commitments and/or outstanding Loans of existing Lenders
(who in each case must specifically consent thereto), then in the case of any
action pursuant to preceding clause (B) each Lender (determined after giving
effect to the proposed action) shall specifically consent thereto, provided
further, that in any event the Borrower shall not have the right to replace a
Lender, terminate its Commitments or repay its Loans solely as a result of the
exercise of such Lender's rights (and the withholding of any required consent by
such Lender) pursuant to clauses (viii) or (ix) of the first proviso of
Section 9.02(b) or any clause of the second proviso to Section 9.02(b).
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) Level 3 and the
Borrowers shall pay, on a joint and several basis, (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents or Finance Document or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, the
Issuing Bank or any Lender, including the fees, charges and disbursements of a
financial advisor and not more than three separate outside counsel (as well
as separate local and regulatory counsel) for the Administrative Agent, the
Issuing Bank and the Lenders, in connection with the enforcement or protection
of its rights in connection with the Loan Documents and the Finance Documents,
including its rights under this Section, or in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such
Loans or Letters of Credit.
(b) Level 3 and the Borrowers shall indemnify, on a joint and several
basis, the Administrative Agent, the Issuing Bank and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or Finance Document
or any other agreement or instrument contemplated hereby, the performance by the
parties to the Loan Documents and the Finance Documents of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such Letter
of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any Mortgaged Property or any other property owned or
operated by the Borrower or any of the Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of the Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that Level 3 and the Borrowers fail to pay any amount
required to be paid by them to the Administrative Agent, the Issuing Bank or the
Swingline Lender under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender's pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent, the Issuing
Bank or the Swingline Lender in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be
determined based upon its share of the sum of the total Revolving Exposures,
outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, neither Level 3 nor any
Borrower shall assert, and each hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Loan or Letter of Credit or the use
of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit), except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby (including any Affiliate of the Issuing Bank that
issues any Letter of Credit) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuing Bank and
the Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in
the case of an assignment to a Lender or an Affiliate of a Lender or a Related
Fund of a Lender, each of the applicable Borrowers and the Administrative Agent
(and, in the case of an assignment of all or a portion of a Revolving Commitment
or any Lender's obligations in respect of its LC Exposure or Swingline Exposure,
the Issuing Bank and the Swingline Lender) must give their prior written consent
to such assignment (which consent shall not be unreasonably withheld or
delayed), (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender or a Related Fund of a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment or Loans, the amount of
the Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the applicable Borrower and the Administrative Agent
otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement, except that
this clause (iii) shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender's rights and obligations in
respect of one Class of Commitments or Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
any consent of the Borrowers otherwise required under this paragraph shall not
be required if an Event of Default under clauses (a), (b), (h) or (i) of Article
VII has occurred and is continuing and any assignment made pursuant to the Loan
Allocation Agreement shall not require any consent of any party hereunder, shall
not require the payment of any processing and recordation fee, and shall be
effected in accordance with the provisions of the Loan Allocation Agreement,
notwithstanding any inconsistency between the terms thereof and of any Loan
Document. Subject to acceptance and recording thereof pursuant to paragraph (d)
of this Section, from and after the effective date specified in each Assignment
and Acceptance the assignee thereunder shall be a party hereto and to the Loan
Allocation Agreement and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under
this Agreement and the Loan Allocation Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement and the Loan
Allocation Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto and thereto but shall continue to be
entitled to the benefits of Sections 2.16, 2.17, 2.18 and 9.03 hereof). Except
for assignments pursuant to the Loan Allocation Agreement, any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices in The City of New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive, and Level 3, the Borrower, the Administrative
Agent, the Issuing Bank and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower, the Issuing Bank and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the Administrative
Agent, the Issuing Bank or the Swingline Lender, sell participations to one or
more banks or other entities (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) Level 3, the Borrower, the Administrative Agent, the
Issuing Bank and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce the Loan Documents and to approve any amendment, modification or
waiver of any provision of the Loan Documents and the Finance Documents;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.16,
2.17 and 2.18 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.19(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.16, 2.17, or 2.18 than the applicable participating Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a Foreign
Lender if it were a Lender shall not be entitled to the benefits of Section 2.16
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto. In
the case of any Lender that is a fund that invests in bank loans, such Lender
may, without the consent of the Borrower or the Administrative Agent, pledge,
all or any portion of its rights under this Agreement, including the Loans or
any instrument evidencing all or a portion of its rights as a Lender under this
Agreement, to any holder of, trustee for, or any other representative of holders
of, obligations owed or securities issued, by such fund, as security for such
obligations or securities; provided that (i) any foreclosure or similar action
by such trustee or representative shall be subject to the provisions of this
Section 9.04 concerning assignments, (ii) no such pledge shall release a Lender
from any of its obligations hereunder or substitute any such Lender as a party
hereto and (iii) any such pledge shall be subject to the provisions of
Section 9.12.
(h) Level 3 and the Borrowers hereby consent to the terms of the Loan
Allocation Agreement, the performance thereof by the Lenders and any assignments
effected in accordance therewith, and each Borrower agrees to take such actions
(including the execution and delivery of replacement promissory notes) as may be
reasonably necessary to effectuate the transactions contemplated thereby.
However, neither the consent thereto by Level 3 and the Borrowers, nor the
compliance thereof by any Borrower shall be construed to alter, change or amend
the obligations secured under the applicable Security Document.
SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.16, 2.17, 2.18 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment
of the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents, the Finance Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof. This Agreement became effective on September 30,
1999, and the amendment and restatement hereof contemplated by the Amendment
Agreement became effective on the Amendment Effectiveness Date.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each RC Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each of Level 3 and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document or Finance Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document or Finance Document shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document or Finance
Document against Level 3, the Borrower or its properties in the courts of any
jurisdiction.
(c) Each of Level 3 and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document or Finance Document in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document or Finance Document will affect the right
of any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR FINANCE DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or Finance
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the Borrower or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section
(ii) becomes available to the Administrative Agent, the Issuing Bank or any
Lender on a nonconfidential basis from a source other than Level 3 or the
Borrower ,(i) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 9.12 or (j) to
the National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender. For the purposes of this Section, "Information" means
all information received from Level 3 or the Borrower relating to Level 3 or the
Borrower or its business (including information obtained through the exercise of
a Lender's rights under Sections 5.01 and 5.09)
other than any such information that is available to the Administrative Agent,
the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by
Level 3 or the Borrower. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees,
charges and other amounts which are treated as interest on such Loan under
applicable law (collectively the "Charges"), shall exceed the maximum lawful
rate (the "Maximum Rate") which may be contracted for, charged, taken, received
or reserved by the Lender holding such Loan in accordance with applicable law,
the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate
and, to the extent lawful, the interest and Charges that would have been payable
in respect of such Loan but were not payable as a result of the operation of
this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or periods shall be increased (but not above
the Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Effective Rate to the date of repayment, shall have
been received by such Lender.
SECTION 9.14. Liability of Borrowers. The Borrowers are engaged as an
integrated group in the telecommunications businesses conducted by them, and
each Borrower expects to derive benefit, directly or indirectly, from the credit
extended by the Lenders hereunder, both in its individual capacity and as a
member of such integrated group. Each Borrower will be jointly and severally
liable for the payment of all Obligations incurred under this Agreement and the
other Loan Documents, including all obligations in respect of principal,
interest, reimbursement of LC Disbursements, the posting of cash Collateral,
fees, expense reimbursements and indemnities. If, in any action or proceeding
before any court of competent jurisdiction under any state or Federal
bankruptcy, insolvency, reorganization or similar law affecting the rights of
creditors generally, the joint and several obligations of any Borrower in
respect of the Obligations would otherwise, taking into account the provisions
of the Indemnity, Subrogation and Contribution Agreement and other rights of
such Borrower under applicable law, be held or determined to be void, invalid or
unenforceable, or subordinated to the claims of other senior creditors of such
Borrower, on account of the amount of such Borrower's liability in respect of
the Obligations, then, notwithstanding any provision hereof to the contrary, the
amount of such liability shall be automatically limited and reduced to the
highest amount that is valid and enforceable and not subordinated to the claims
of other senior creditors, as determined by such court in such action or
proceeding.
SECTION 9.15. Release of Subsidiaries and Borrowers. (a) If (i) the Agent
receives a certificate from the chief executive officer, the chief financial
officer or treasurer of Level 3 certifying as of the date of that certificate
that, after the consummation of the transaction or series of transactions
described in reasonable detail satisfactory to the Agent in such certificate on
such date, the Subsidiary Loan Party or Borrower, as the case may be, identified
in such certificate will no longer be a Subsidiary of Level 3, (ii) such
transactions are consummated on such date in accordance with and without
violating the provisions of this Agreement or any other Loan Document or Finance
Document, and (iii) in the case of a Borrower, any outstanding Letters of Credit
issued for the account of such Borrower have
been, or arrangements are in place for them to be, terminated, then (x) such
Subsidiary's Guarantee shall automatically terminate and such Subsidiary shall
cease to be a party to any Loan Document (and Collateral provided by such
Subsidiary for the Obligations shall be released and the Collateral Agent shall
execute such documents to evidence such release) or (y) such Borrower shall
automatically cease to be a party to this Agreement and the other Loan
Documents.
(b) If any of the Collateral shall be sold or disposed of by any Loan Party
to a Person other than Level 3 or a Subsidiary of Level 3 in a transaction
permitted under this Agreement and the Loan Documents, such Collateral shall be
automatically released from the Lien created under the Loan Documents.
(c) If all of the Capital Stock of any Subsidiary Loan Party shall be sold
or disposed of to a Person other than Level 3 or a Subsidiary of Level 3 in a
transaction permitted under this Agreement and the Loan Documents, such
Subsidiary Loan Party shall be automatically released from its obligations under
the Loan Documents to which it is a party.
(d) If Level 3 or any of its Subsidiaries undergo a restructuring in a
transaction permitted under this Agreement and the Loan Documents pursuant to
which the Capital Stock of a Foreign Subsidiary that has already been pledged
pursuant to the Collateral and Guarantee Requirement is no longer directly owned
by a Loan Party, then (i) such Foreign Subsidiary Capital Stock shall be
automatically released from the Lien created under the Loan Documents and (ii)
the Administrative Agent shall cause any certificates representing any Foreign
Subsidiary Capital Stock so released that is held by the Collateral Agent to be
promptly (an in no event longer than 10 Business Days) returned to the Borrowers
after the receipt by the Collateral Agent of written notice from the Borrowers
stating that a transaction contemplated by this paragraph (d) has been
consummated.
(e) No such termination or cessation shall release, reduce, or otherwise
adversely affect the obligations of any other Loan Party under this Agreement,
any other Guarantee, or any other Loan Document or Finance Document, all of
which obligations continue to remain in full force and effect.
(f) The Lenders shall, at Level 3's expense execute such documents as Level
3 may reasonably request to evidence such termination or cessation, as the case
may be.
SECTION 9.16. Special Funding Option. (a) Notwithstanding anything to the
contrary contained herein, any Lender (for the purposes of this Section 9.16, a
"Granting Lender") may grant to a special purpose funding vehicle (for the
purposes of this Section 9.16, an "SPC") the option to make, on behalf of such
Granting Lender, all or a portion of the Loans
which such Granting Lender is obligated to make (a "Funding Obligation") under
the Revolving Credit Facility, such option to be exercisable in the sole
discretion of the SPC, provided, however, that
(i) such Granting Lender's obligations under this Agreement and
the Loan Documents shall remain unchanged, including without
limitation the indemnification obligations of the Granting Lender
pursuant to Section 9.03 hereof;
(ii) such Granting Lender shall remain solely responsible to the
other parties hereto for the performance of all Funding Obligations;
(iii) the Borrower and the Lenders shall continue to deal solely
and directly with such Granting Lender in connection with such
Granting Lender's rights and obligations under this Agreement; the
Agent shall continue to deal directly with the Granting Lender as
agent for the SPC with respect to distribution of payment of
principal; interest and fees, notices of Conversion and Continuation
and all other matters;
(iv) such Granting Lender shall retain the sole right to enforce
the obligations of the Borrower relating to its Loans and its Notes
and to approve any amendment, modification, or waiver of any
provisions of this Agreement, each of which may, if so agreed in
writing between the Granting Lender and the SPC, require the prior
consent of any such SPC which has exercised the option to undertake
the Funding Obligation in connection with such Granting Lender's
Commitments and Obligations owing thereto before the Granting Lender
approves any such amendment, modification or waiver;
(v) the granting of such option shall not constitute an
assignment to or participation of such SPC of or in the Granting
Lender's Commitments and Obligations owing thereto;
(vi) such SPC shall not become a Lender hereunder as a result of
the granting of such option;
(vii) such SPC shall not become obligated or committed to make
Loans as a result of the granting of such option;
(viii) if such SPC elects not to exercise such option or
otherwise fails to make all or any part of a Loan, the Granting Lender
shall retain its Funding Obligation and be obligated to make the
entire Loan or any portion of such Loan not made by such SPC; and
(ix) any SPC may, with notice to, but without the prior written
consent of, the Borrowers and the Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its
interests as a participant or subparticipant in any Loans to the
Granting Bank or to any financial institutions (consented to by the
Borrowers and Administrative Agent) providing liquidity and/or credit
support to or for the account of such SPC to support the funding or
maintenance of Loans.
(b) Loans made by an SPC hereunder shall be deemed to satisfy the Funding
Obligation and utilize the Revolving Credit Commitment of the Granting Lender as
if, and to the same extent, such Loans were made by such Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for any indemnity
or payment under this Agreement for which a Granting Lender would otherwise be
liable so long as, and to the extent that, the Granting Lender provides such
indemnity or makes such payment. In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior Indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the United States or any
State thereof arising out of or relating to transactions under this Agreement or
the other Loan Documents or Finance Documents.
(d) Notwithstanding anything to the contrary contained in this Agreement,
an SPC may disclose on a confidential basis any nonpublic information relating
to Loans made by such SPC hereunder to any rating agency, commercial paper
dealer or provider of any surety or guarantee to such SPC.
(e) This Section 9.16 may not be amended without the prior written consent
of the Granting Lender on behalf of which such SPC has made all or any part of
its Loans which remain outstanding at the time of such amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
LEVEL 3 COMMUNICATIONS, INC.,
by
__________________________
Name:
Title:
LEVEL 3 INTERNATIONAL SERVICES, INC.,
by
__________________________
Name:
Title:
LEVEL 3 INTERNATIONAL, INC.,
by
__________________________
Name:
Title:
LEVEL 3 COMMUNICATIONS, LLC,
by
__________________________
Name:
Title:
BTE EQUIPMENT, LLC,
by
__________________________
Name:
Title:
ELDORADO FUNDING, LLC,
by
__________________________
Name:
Title:
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by
__________________________
Name:
Title:
GOLDMAN SACHS CREDIT PARTNERS L.P.,
by
__________________________
Name:
Title:
CITICORP USA, INC.,
by
__________________________
Name:
Title:
[OTHER LENDERS],
by
__________________________
Name:
Title:
EXHIBIT O
Permitted Indemnification Obligations
The indemnification obligations would include an indemnity or guarantee by Level
3 or any Restricted Subsidiary (the "Guarantor") for the obligations or
liabilities of the Colocation Subsidiary (the "Colocation Borrower") under
Indebtedness of such Colocation Borrower to the holder of such Indebtedness (the
"Lender") for any loss, damage, cost, expense, liability or claim incurred by
Lender (including reasonable attorneys' fees and costs) arising out of or in
connection with the following:
1. fraud or intentional misrepresentation by the Colocation Borrower or
Guarantor in connection with the Loan;
2. the gross negligence or willful misconduct by the Colocation Borrower;
3. the breach of any representation, warranty, covenant or indemnification
provision in any environmental indemnification agreement provided by the
Colocation Borrower in connection with the Indebtedness or in any mortgage
(a "Mortgage") given by the Colocation Borrower on its properties to secure
the Indebtedness concerning environmental laws, hazardous substances and
asbestos and any indemnification of Lender with respect thereto in either
document;
4. the removal or disposal of any portion of the property (the "Property")
subject to any Mortgage after an event of default thereunder in
contravention of the loan documents creating, evidencing or relating to
such Indebtedness (the "Loan Documents");
5. the misapplication or conversion by the Colocation Borrower of (i) any
insurance proceeds paid by reason of any loss, damage or destruction to the
Property, (ii) any awards or other amounts received in connection with the
condemnation of all or a portion of the Property and (iii) any rents
following an event of default under the Loan Documents;
6. failure to pay charges for labor or materials or other charges before they
become liens on any portion of the Property, subject to the Colocation
Borrower's right to contest such Liens pursuant to the Loan Documents;
7. any security deposits, advance deposits or other deposits collected with
respect to the Property which are not delivered to Lender upon a
foreclosure of the Property or action in lieu thereof, except to the extent
any such security deposits were applied in accordance with the terms and
conditions of any of the leases of the Property prior to the occurrence
of the Event of Default under the Loan Documents that gave rise to such
foreclosure or action in lieu thereof or deposited with Lender pursuant to
the Loan Documents;
8. the breach by the Colocation Borrower of its indemnification obligations
for fees, expenses and liabilities in respect of third party claims set
forth in the Loan Documents;
9. the failure of Borrower to maintain its status as a single purpose entity
as required by, and in accordance with the terms and provisions of, the
Loan Agreement and the Mortgage;
10. the failure of Borrower to obtain Lender's prior written consent to any
subordinate financing or other voluntary lien encumbering the Property;
11. the failure of Borrower to obtain Lender's prior written consent to any
assignment, transfer, or conveyance of the Property or any interest therein
as required by the Loan Agreement or the Mortgage; and
12. any petition for bankruptcy, reorganization or arrangement pursuant to
federal bankruptcy, reorganization or arrangement pursuant to federal
bankruptcy law, or any similar federal or state law, shall be filed by the
Colocation Borrower.