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EXHIBIT 10.29
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$100,000,000
CREDIT AGREEMENT
DATED AS OF DECEMBER 30, 1998
BETWEEN
TELCO SYSTEMS, INC.
WORLD ACCESS HOLDINGS, INC.
AND
NATIONSBANK, N.A.
AS ADMINISTRATIVE AGENT
AND
FLEET NATIONAL BANK
AS SYNDICATION AGENT
AND
BANK AUSTRIA CREDITANSTALT CORPORATE FINANCE, INC.
AS DOCUMENTATION AGENT
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS
1.01. Definitions.............................................................1
1.02. Accounting and Other Terms.............................................23
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01. The Facility...........................................................23
2.02. Making Advances........................................................23
2.03. Evidence of Indebtedness...............................................25
2.04. Reduction of Available Commitments.....................................25
2.05. Prepayments............................................................27
2.06. Mandatory Repayment....................................................28
2.07. Interest...............................................................28
2.08. Default Interest.......................................................29
2.09. Continuation and Conversion Elections..................................29
2.10. Fees...................................................................30
2.11. Funding Losses.........................................................31
2.12. Computations and Manner of Payments....................................31
2.13. Yield Protection.......................................................32
2.14. Use of Proceeds........................................................34
2.15. Collateral and Collateral Call.........................................34
2.16. Option to Extend the Conversion Date; Option to Convert to Term........35
2.17. Conditions Precedent to the Increase of the Available Commitment.......36
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit..........................................38
3.02. Letters of Credit Fee..................................................39
3.03. Reimbursement Obligations..............................................39
3.04. Lenders' Obligations...................................................41
3.05. Administrative Agent's Obligations.....................................41
3.06 Reinstatement..........................................................42
3.07 Survivability of Provisions............................................42
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to the Initial Advance............................42
4.02. Conditions Precedent to All Advances...................................44
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ARTICLE V. REPRESENTATIONS AND WARRANTIES
5.01. Organization and Qualification.........................................45
5.02. Due Authorization; Validity............................................45
5.03. Conflicting Agreements and Other Matters...............................46
5.04. Financial Statements...................................................46
5.05. Litigation.............................................................46
5.06. Compliance With Laws Regulating the Incurrence of Debt.................46
5.07. Licenses, Title to Properties, and Related Matters.....................47
5.08. Outstanding Debt and Liens.............................................48
5.09. ERISA..................................................................48
5.10. Environmental Laws.....................................................48
5.11. Disclosure.............................................................49
5.12. Investments; Restricted Subsidiaries...................................49
5.13. Certain Fees...........................................................49
5.14. Intellectual Property..................................................50
5.16. Survival of Representations and Warranties, etc........................50
ARTICLE VI. AFFIRMATIVE COVENANTS
6.01. Compliance with Laws and Payment of Debt...............................51
6.02. Insurance..............................................................51
6.03. Inspection Rights......................................................52
6.04. Records and Books of Account; Changes in GAAP..........................52
6.05. Reporting Requirements.................................................52
6.06. Use of Proceeds........................................................54
6.07. Maintenance of Existence and Assets....................................55
6.08. Payment of Taxes.......................................................55
6.09. Indemnity..............................................................55
6.10. Management Fees Paid and Earned........................................56
6.11. Authorizations and Material Agreements.................................56
6.12. Further Assurances.....................................................56
6.13. Year 2000 Compliance...................................................57
6.14. Subsidiaries and Other Obligors........................................57
ARTICLE VII. NEGATIVE COVENANTS
7.01. Financial Covenants....................................................57
7.02. Debt...................................................................57
7.03. Contingent Liabilities.................................................58
7.04. Liens..................................................................58
7.05. Dispositions of Assets.................................................58
7.06. Distributions and Restricted Payments..................................58
7.07. Merger; Consolidation..................................................58
7.08. Business...............................................................58
7.09. Transactions with Affiliates...........................................59
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7.10. Loans and Investments..................................................59
7.11. Fiscal Year and Accounting Method......................................59
7.12. Issuance of Partnership Interest and Capital Stock; Amendment of
Articles and By-Laws...................................................59
7.13. Change of Ownership....................................................59
7.14. Sale and Leaseback.....................................................59
7.15. Compliance with ERISA..................................................60
7.16. Rate Swap Exposure.....................................................60
7.17. Restricted Subsidiaries and Other Obligors.............................60
7.18. Limitation on Restrictive Agreements...................................60
ARTICLE VIII. EVENTS OF DEFAULT
8.01. Events of Default......................................................61
8.02. Remedies Upon Default..................................................64
8.03. Cumulative Rights......................................................65
8.04. Waivers................................................................65
8.05. Performance by Administrative Agent or any Lender......................65
8.06. Expenditures...........................................................66
8.07. Control................................................................66
ARTICLE IX. THE ADMINISTRATIVE AGENT
9.01. Authorization and Action...............................................66
9.02. Administrative Agent's Reliance, Etc...................................66
9.03. NationsBank, N. A. and Affiliates......................................67
9.04. Lender Credit Decision.................................................67
9.05. Indemnification by Lenders.............................................67
9.06. Successor Administrative Agent.........................................68
ARTICLE X. MISCELLANEOUS
10.01. Amendments and Waivers.................................................68
10.02. Notices................................................................69
10.03. Parties in Interest....................................................71
10.04. Assignments and Participations.........................................71
10.05. Sharing of Payments....................................................72
10.06. Right of Set-off.......................................................72
10.07. Costs, Expenses, and Taxes.............................................72
10.08. Indemnification by the Borrower........................................73
10.09. Rate Provision.........................................................74
10.10. Severability...........................................................74
10.11. Exceptions to Covenants................................................74
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10.12. Counterparts...........................................................75
10.13. GOVERNING LAW; WAIVER OF JURY TRIAL....................................75
10.14. ENTIRE AGREEMENT.......................................................75
10.15. Joint and Several Obligations..........................................75
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TABLE OF SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1.01 Restricted Subsidiaries
Schedule 5.01 Organization and Qualification
Schedule 5.01(d) Stock Options & Warrants Outstanding
Schedule 5.03 Consents under Material Agreements
Schedule 5.05 Litigation
Schedule 5.07 Authorizations
Schedule 5.08 Debt, Contingent Liabilities and Liens on the Closing Date
Schedule 5.11 Environmental Liabilities on the Closing Date
Schedule 5.12 Investments
Schedule 7.03 Subordination Terms
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Assignment and Acceptance
Exhibit C - Form of Pledge and Security Agreement
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Conversion/Continuation Notice
Exhibit F - Form of Borrowing Notice
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TELCO SYSTEMS, INC.
WORLD ACCESS HOLDINGS, INC.
$100,000,000
CREDIT AGREEMENT
.
THIS CREDIT AGREEMENT is dated as of December 30, 1998 and is between
TELCO SYSTEMS, INC. and WORLD ACCESS HOLDINGS, INC. (collectively, the
"Borrower"), the Lenders from time to time party hereto (the "Lenders") or to
an Assignment and Acceptance, and NATIONSBANK, N.A., a national banking
association ("NationsBank"), as a Lender and Administrative Agent (the
"Administrative Agent"), Fleet National Bank, as Syndication Agent, and Bank
Austria Creditanstalt Corporate Finance, Inc., as Documentation Agent.
BACKGROUND
WHEREAS, the Borrower, the Administrative Agent and the Lenders hereby
enter into a Credit Agreement which provides for a 364-day revolving credit
facility in the amount of $75,000,000 ((which such loan facility may increase
to $100,000,000 as provided herein) and shall also include a letter of credit
availability of not more than $25,000,000), the proceeds of which shall be used
for Permitted Acquisitions, Capital Expenditures, working capital, and general
corporate purposes.
AGREEMENT
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I. DEFINITIONS
1.01. Definitions. As used in this Agreement, the following terms have
the respective meanings indicated below (such meanings to be applicable equally
to both the singular and plural forms of such terms):
"Administrative Agent" means NationsBank, N. A., in its capacity as
Administrative Agent hereunder, or any successor Administrative Agent appointed
pursuant to Section 9.06 hereof.
"Advance" means an advance made by a Lender to the Borrower pursuant
to Section 2.01 hereof, and may include Advances under the Term Loan.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled By or is Under Common Control
with another Person, and with respect to the Borrower, "Affiliate" means a
Person that directly or indirectly through one or more
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intermediaries, Controls or is Controlled By or is Under Common Control with
the Borrower or any Subsidiary of the Borrower.
"Agreement" means this Credit Agreement, as hereafter amended,
modified, or supplemented in accordance with its terms.
"Annualized Operating Cash Flow" means, as of any date of
determination, (i) for the Borrower and each of its Restricted Subsidiaries
other than World Access Telecommunications Group, Inc. the product of two times
Operating Cash Flow for the two most recently ended fiscal quarters and (ii)for
World Access Telecommunications Group, Inc., the product of four times the
Operations Cash Flow for the most recently ended fiscal quarter
"Applicable Law" means (a) in respect of any Person, all provisions of
Laws of Tribunals applicable to such Person, and all orders and decrees of all
courts and arbitrators in proceedings or actions to which the Person in
question is a party and (b) in respect of contracts made or performed in the
State of Texas, "Applicable Law" also means the laws of the United States of
America, including, without limiting the foregoing, 12 U.S.C. Sections 85 and
86, as amended to the date hereof and as the same may be amended at any time
and from time to time hereafter, and any other statute of the United States of
America now or at any time hereafter prescribing the maximum rates of interest
on loans and extensions of credit, and the laws of the State of Texas,
including, without limitation, Article 5069-1H, Title 79, Revised Civil
Statutes of Texas, 1925, ("Art. 1H"), as amended, if applicable, and if Art. 1H
is not applicable, Article 5069-1D, Title 79, Revised Civil Statutes of Texas,
1925, ("Art. 1D"), as amended, and any other statute of the State of Texas now
or at any time hereafter prescribing maximum rates of interest on loans and
extensions of credit; provided however, that the Borrower agrees that the
provisions of Chapter 346 of the Texas Finance Code, as amended, shall not
apply to Advances hereunder.
"Applicable Margin" means (i) with respect to the Base Rate Advances
under the Facility, 1.250% per annum and (ii) with respect to LIBOR Advances
under the Facility, 2.250% per annum. Notwithstanding the foregoing, effective
three Business Days after receipt by the Administrative Agent from the Borrower
of a Compliance Certificate delivered to the Lenders for any reason and
demonstrating a change in the Total Leverage Ratio to an amount so that another
Applicable Margin should be applied pursuant to the table set forth below, the
Applicable Margin for each type of Advance shall mean the respective amount set
forth below opposite such relevant Total Leverage Ratio in Columns A and B
below, in each case until the first succeeding Quarterly Date which is at least
three Business Days after receipt by the Administrative Agent from the Borrower
of a Compliance Certificate, demonstrating a change in the Total Leverage Ratio
to an amount so that another Applicable Margin shall be applied; provided that,
if there exists a Default or if the Total Leverage Ratio shall at any time be
greater than or equal to 2.50 to 1.00, the Applicable Margin shall again be the
respective amounts first set forth in this definition; provided further, that
the Applicable Margin in effect on the Closing Date shall be determined
pursuant to a Compliance Certificate delivered on the Closing Date, provided,
further, that if the Borrower fails to deliver any financial statements to the
Administrative Agent within the required time periods set forth in Sections
6.05(a) and Section 6.05(b) hereof, the Applicable
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Margin shall again be the
respective amounts first set forth in this definition until the date which is
three Business Days after the Administrative Agent receives financial
statements from the Borrower which demonstrate that another Applicable Margin
should be applied pursuant to the table set forth below; and provided further,
that the Applicable Margin shall never be a negative number.
COLUMN A COLUMN B
Total Leverage Ratio Base Rate LIBOR
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Greater than or equal to
2.50 to 1.00 1.250% 2.250%
Greater than or equal to
2.00 to 1.00 but less than
2.50 to 1.00 1.000% 2.000%
Greater than or equal to
1.50 to 1.00 but less than
2.00 to 1.00 0.750% 1.750%
Greater than or equal to
1.00 to 1.00 but less than
1.50 to 1.00 0.500% 1.500%
Less than 0.250% 1.250%
1.00 to 1.00
"Art. 1H" has the meaning specified in the definition herein of
"Applicable Law".
"Art. 1D" has the meaning specified in the definition herein of
"Applicable Law".
"Asset Sale" means any sale, disposition, liquidation, conveyance or
transfer by the Borrower or any Restricted Subsidiary of any Property (or
portion thereof) or an interest other than Permitted Dispositions.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by Administrative
Agent, in the form of Exhibit B hereto, as each such agreement may be amended,
modified, extended, restated, renewed, substituted or replaced from time to
time.
"Assignor" has the meaning ascribed thereto in Section 10.04(a)
hereof.
"Auditor" means Ernst & Young LLP, or other independent certified
public accountants selected by the Borrower and acceptable to Administrative
Agent.
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"Authorizations" means all filings, recordings and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
Licenses, certificates and permits from, the FCC, applicable public utilities
and other federal, state and local regulatory or governmental bodies and
authorities or any subdivision thereof, including, without limitation, FCC
Licenses.
"Authorized Officer" means any of the President, Executive Vice
President-Chief Financial Officer, Vice President-Chief Accounting Officer,
Vice President-Finance, Secretary, Treasurer, or any other officer authorized
by the Borrower from time to time of which the Administrative Agent has been
notified in writing.
"Available Commitment" means $75,000,000, as such amount may be
increased prior to June 30, 1999 in accordance with the terms of Section 2.17
hereof, and as such amount may be reduced from time to time or terminated
pursuant to Sections 2.04, 2.06 or 8.02 hereof.
"Bank Affiliate" means the holding company of any Lender, or any
wholly owned direct or indirect subsidiary of such holding company or of such
Lender.
"Base Rate Advance" means an Advance bearing interest at the Base
Rate.
"Base Rate" means a fluctuating rate per annum as shall be in effect
from time to time equal to the lesser of (a) the Highest Lawful Rate and (b)
the sum of the Applicable Margin plus the greater of (i) the sum of Federal
Funds Rate in effect from time to time plus .50% and (ii) the rate of interest
as then in effect announced publicly by NationsBank, N.A. in Dallas, Texas from
time to time as its U.S. dollar prime commercial lending rate (such rate may or
may not be the lowest rate of interest charged by NationsBank from time to
time). The Base Rate shall be adjusted automatically as of the opening of
business on the effective date of each change in the prime rate to account for
such change.
"Bond Letter of Credit" means the $7,470,934.90 Irrevocable Letter of
Credit issued by Bank Austria AG backing payment of the $7,365,000 Forsyth
County Development Authority Industrial Development Revenue Bonds (World
Access, Inc. Project), Series 1998.
"Borrower" means, collectively, Telco Systems, Inc. and World Access
Holdings, Inc.
"Borrowing" means a borrowing under the Facility of the same Type made
on the same day.
"Borrowing Notice" has the meaning set forth in Section 2.02(a)
hereof.
"Business Day" means a day of the year on which banks are not required
or authorized to close in Dallas, Texas and, if the applicable day relates to
any notice, payment or calculation related to a LIBOR Advance, in London,
England.
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"Capital Expenditures" means the aggregate amount of all purchases or
acquisitions of items considered to be capital items under GAAP, and in any
event shall include the aggregate amount of items leased or acquired under
Capital Leases at the cost of the item, and the acquisition of realty, tools,
equipment and fixed assets, and any deferred costs associated with any of the
foregoing.
"Capital Leases" means capital leases and subleases, as defined in
accordance with GAAP.
"Capital Stock" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital
stock of any Person that is a corporation and each class of partnership
interests (including, without limitation, general, limited and preference
units) in any Person that is a partnership and membership interests in limited
liability companies.
"Cash Equivalents" means investments (directly or through a money
market fund) in (a) certificates of deposit and other interest bearing deposits
or accounts with United States commercial banks having a combined capital and
surplus of at least $250,000,000, which certificates, deposits and accounts
mature within one year from the date of investment, (b) obligations issued or
unconditionally guaranteed by the United States government, or issued by an
agency thereof and backed by the full faith and credit of the United States
government, which obligations mature within one year from the date of
investment, (c) direct obligations issued by any state or political subdivision
of the United States, which mature within one year from the date of investment
and have the highest rating obtainable from Standard & Poor's Ratings Group or
Moody's Investors Services, Inc. on the date of investment, and (d) commercial
paper which has one of the three highest ratings obtainable from Standard &
Poor's Ratings Group or Moody's Investors Services, Inc.
"Change of Control" means the occurrence of any one or more of the
following events: (i) any event which results in the following: (i) any
"person" or "group" (as such terms are used in Section 13(d) and 14(d) of the
Exchange Act) shall become, or obtain rights (whether by means or warrants,
options or otherwise) to become, the "beneficial owner" (as defined in Rules
13(d)-3 and 13(d)-5 under the Exchange Act), directly or indirectly, of more
than 25% of the outstanding common stock of World Access, Inc., (ii) the board
of directors of the Parent shall cease to consist of a majority of Continuing
Directors, (iii) any event which results in World Access, Inc.'s failure to own
or control 100% of the Capital Stock of WA Telecom Products Co., Inc., WA
Telecom Products Co., Inc.'s failure to own or control 100% of the Capital
Stock of World Access Holdings, Inc. and Telco Systems, Inc. or World Access
Holdings, Inc.'s failure to own and control 100% of the Capital Stock of the
Restricted Subsidiaries, or (iv) as that term is defined in the Indenture.
"Closing Date" means December 30, 1998.
"Code" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations issued thereunder, as from time to time in effect.
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"Collateral" means all "collateral" referred to in any Loan Paper and
all other property which is or may be subject to a Lien in favor or for the
benefit of Administrative Agent on behalf of Lenders or any Lender to secure
the Obligations, including, without limitation, "Collateral" as defined in
Section 2.15(a) hereof.
"Commitment Fees" means each of the fees described in Sections 2.10(a)
and 2.10(b) hereof.
"Compliance Certificate" means a certificate of an Authorized Officer
of the Borrower acceptable to Administrative Agent, in the form of Exhibit D
hereto, (a) certifying that such individual has no knowledge that a Default or
Event of Default has occurred and is continuing, or if a Default or Event of
Default has occurred and is continuing, a statement as to the nature thereof
and the action being taken or proposed to be taken with respect thereto, and
(b) setting forth detailed calculations with respect to each of the covenants
described in Section 7.01 hereof.
"Consequential Loss," with respect to (a) the Borrower's payment of
all or any portion of the then-outstanding principal amount of a LIBOR Advance
on a day other than the last day of the related Interest Period, including,
without limitation, payments made as a result of the acceleration of the
maturity of a Note, (b) (subject to Administrative Agents' prior consent), a
LIBOR Advance made on a date other than the date on which the Advance is to be
made according to Section 2.02(a) or Section 2.09 hereof, or (c) any of the
circumstances specified in Section 2.04, Section 2.05 and Section 2.06 hereof
on which a Consequential Loss may be incurred, means any loss, cost or expense
incurred by any Lender as a result of the timing of the payment or Advance or
in liquidating, redepositing, redeploying or reinvesting the principal amount
so paid or affected by the timing of the Advance or the circumstances described
in Section 2.04, Section 2.05, and Section 2.06 hereof, which amount shall be
the sum of (i) the interest that, but for the payment or timing of Advance,
such Lender would have earned in respect of that principal amount, reduced, if
such Lender is able to redeposit, redeploy, or reinvest the principal amount,
by the interest earned by such Lender as a result of redepositing, redeploying
or reinvesting the principal amount plus (ii) any expense or penalty incurred
by such Lender by reason of liquidating, redepositing, redeploying or
reinvesting the principal amount. Each determination by each Lender of any
Consequential Loss is, in the absence of manifest error, conclusive and
binding.
"Contingent Liability" means, as to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Debt or obligation of any other Person in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment of such Debt, (b) to purchase Property or services for the purpose
of assuring the owner of such Debt of its payment, or (c) to maintain the
solvency, working capital, equity, cash flow, fixed charge or other coverage
ratio, or any other financial condition of the primary obligor so as to enable
the primary obligor to pay any Debt or to comply with any agreement relating to
any Debt or obligation, and shall, in any event,
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include any contingent obligation under any letter of credit, application for
any letter of credit or other related documentation.
"Continue," "Continuation" and "Continued" each refer to the
continuation pursuant to Section 2.09 hereof of a LIBOR Advance from one
Interest Period to the next Interest Period.
"Continuing Directors" means the directors of World Access, Inc. on
the Closing Date, and each other director, if, in each case, such other
director's nomination for election to the board of directors of World Access,
Inc. is recommended by at least 66 2/3% of the then Continuing Directors.
"Control" or "Controlled By" or "Under Common Control" mean
possession, direct or indirect, of power to direct or cause the direction of
management or policies (whether through ownership of voting securities, by
contract or otherwise); provided that, in any event (a) it shall include any
director (or Person holding the equivalent position) or executive officer (or
Person holding the equivalent position) of such Person or of any Affiliate of
such Person, (b) any Person which beneficially owns 5% or more (in number of
votes) of the securities having ordinary voting power for the election of
directors of a corporation shall be conclusively presumed to control such
corporation, (c) any general partner of any partnership shall be conclusively
presumed to control such partnership, (d) any other Person who is a member of
the immediate family (including parents, spouse, siblings and children) of any
general partner of a partnership, and any trust whose principal beneficiary is
such individual or one or more members of such immediate family and any Person
who is controlled by any such member or trust, or is the executor,
administrator or other personal representative of such Person, shall be
conclusively presumed to control such Person, and (e) no Person shall be deemed
to be an Affiliate of a corporation solely by reason of his being an officer or
director of such corporation.
"Controlled Group" means, as to any Person, all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) which are under common control with such Person and which,
together with such Person, are treated as a single employer under Section
414(b), (c), (m) or (o) of the Code.
"Conversion Date" means the date that is 364 days after the Closing
Date, as extended pursuant to Section 2.16(a) hereof.
"Conversion or Continuance Notice" has the meaning set forth in
Section 2.09(b) hereof.
"Debt" means all obligations, contingent or otherwise, which in
accordance with GAAP are required to be classified on the balance sheet as
liabilities, and, in any event, includes accrued Earn-Out Liabilities(in
accordance with GAAP), Capital Leases, Contingent Liabilities that are required
to be disclosed and quantified in notes to consolidated financial statements in
accordance with GAAP, and liabilities secured by any Lien on any Property,
regardless of whether such secured liability is with or without recourse.
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"Debt for Borrowed Money" means, as to any Person, at any date,
without duplication, (a) all obligations of such Person for borrowed money, (b)
all obligations of such Person evidenced by bonds, debentures, notes, letters
of credit (or applications for letters of credit) or other similar instruments,
(c) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business and (d) all obligations of such Person secured by a Lien on
any assets or property of any Person.
"Debtor Relief Laws" means applicable bankruptcy, reorganization,
moratorium or similar Laws, or principles of equity, affecting the enforcement
of creditors' rights generally.
"Default" means any event specified in Section 8.01 hereof, whether or
not any requirement in connection with such event for the giving of notice,
lapse of time or happening of any further condition has been satisfied.
"Distribution" means, as to any Person, (a) any declaration or payment
of any distribution or dividend (other than a stock dividend) on, or the making
of any pro rata distribution, loan, advance or investment to or in any holder
(in its capacity as a partner, shareholder or other equity holder) of, any
partnership interest or shares of capital stock or other equity interest of
such Person, or (b) any purchase, redemption or other acquisition or retirement
for value of any shares of partnership interest or capital stock or other
equity interest of such Person.
"Earn-Out Liability" means, with respect to the Borrower and its
Restricted Subsidiaries, any unsecured contingent liability of the Borrower or
any Restricted Subsidiary of the Borrower incurred in connection with any
Permitted Acquisition, which such contingent liability (a) constitutes a
portion of the purchase price for the property acquired but is not an amount
certain, (b) is only payable based on the performance of the acquired property
and in an amount based only on the performance of the acquired property or (c)
is not subject to any acceleration right (other than those rights in existence
as of the date hereof). "Earn-Out Liability" does not include shares of the
common stock of the Parent already issued and paid into escrow in connection
with any Permitted Acquisition.
"Eligible Assignee" means (a) any Bank Affiliate, (b) a commercial
bank organized under the laws of the United States or any state thereof, having
total assets in excess of $500,000,000; (c) a commercial bank organized under
the laws of any other country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of any such
country, and having total assets in excess of $500,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is described in this clause; and (d) the
central bank of any country which is a member of the Organization for Economic
Cooperation and Development.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. ss.9601 et seq.) ("CERCLA"), the
Hazardous Material Transportation Act (49 U.S.C. ss.1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C ss.6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. ss.1251 et seq.), the Clean Air Act
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(42 U.S.C. ss.7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
ss.2601 et seq.), and the Occupational Safety and Health Act (29 U.S.C. ss.651
et seq.) ("OSHA"), as such laws have been or hereafter may be amended or
supplemented, and any and all analogous future federal, or present or future
state or local, Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to
time in effect.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of the Borrower or any Subsidiary of
the Borrower, or is under common control with the Borrower or any Subsidiary of
the Borrower, within the meaning of Section 414(c) of the Code.
"ERISA Event" means (a) a reportable event, within the meaning of
Section 4043 of ERISA, unless the 30-day notice requirement with respect
thereto has been waived by the PBGC, (b) the issuance by the administrator of
any Plan of a notice of intent to terminate such Plan in a distress situation,
pursuant to Section 4041(a)(2) and 4041(c) of ERISA (including any such notice
with respect to a plan amendment referred to in Section 4041(e) of ERISA), (c)
the cessation of operations at a facility in the circumstances described in
Section 4062(e) of ERISA, (d) the withdrawal by the Borrower, any Subsidiary of
the Borrower, or an ERISA Affiliate from a Multiple Employer Plan during a Plan
year for which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA, (e) the failure by the Borrower, any Subsidiary of the Borrower or
either Parent, or any ERISA Affiliate to make a payment to a Plan required
under Section 302 of ERISA, (f) the adoption of an amendment to a Plan
requiring the provision of security to such Plan, pursuant to Section 307 of
ERISA, or (g) the institution by the PBGC of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or condition
that constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, a Plan.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended, and the rulings and regulations issued thereunder, as from time to
time in effect.
"Event of Default" means any of the events specified in Section 8.01
hereof, provided there has been satisfied any requirement in connection
therewith for the giving of notice, lapse of time, or happening of any further
condition.
"Facility" means the revolving credit facility made hereunder, which
may convert to a Term Loan.
"FCC" means the Federal Communications Commission and any successor
thereto.
"FCC License" means any community antenna relay service, broadcast
auxiliary license, earth station registration, business radio, microwave or
special safety radio service license issued by the FCC pursuant to the
Communications Act of 1934, as amended, and any other FCC license
9
16
from time to time necessary or advisable for the operation of the Parent's, the
Borrower's or any of their Subsidiaries' business.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of Dallas, or, if such rate is not so published for
any day which is a Business Day, the average of the quotations for such date on
such transactions received by Administrative Agent from three federal funds
brokers of recognized standing selected by it.
"Fee Letters" means that certain letter agreement addressed to the
Borrower and acknowledged by the Borrower, and describing certain fees payable
to the Administrative Agent in connection with this Agreement and the Facility,
and such other fee letter agreements as may be executed from time to time among
the parties hereto, as each may be amended, modified, substituted or replaced
by the parties thereto.
"Fixed Charges" means, for the Parent, the Borrower, and the
Restricted Subsidiaries, for the most recently completed four fiscal quarters,
the sum of (a) cash Total Interest Expense paid or accrued, plus (b) scheduled
repayments of principal of Total Debt (whether by installment or as a result of
a scheduled reduction in a revolving commitment, or otherwise), and accrued
Earn-Out Liabilities(in accordance with GAAP) plus (c) cash taxes paid or
accrued, plus (d) Distributions, plus (e) Capital Expenditures.
"Fixed Charges Coverage Ratio" means the ratio of Operating Cash Flow
for the most recently completed four fiscal quarters, to Fixed Charges.
"Funded Debt" means, without duplication, with respect to any Person,
all Debt of such Person, determined on a consolidated basis and measured in
accordance with GAAP that is either (a) Debt for Borrowed Money, (b) Debt
having a final maturity (or extendable at the option of the obligor for a
period ending) more than one year after the date of creation thereof,
notwithstanding the fact that payments are required to be made less than one
year after such date, (c) Capital Lease obligations (without duplication), (d)
reimbursement obligations relating to letters of credit, without duplication,
(e) Contingent Liabilities relating to any of the foregoing (without
duplication), (f) Withdrawal Liability, (g) Debt, if any, associated with
Interest Hedge Agreements, (h) payments due under Non-Compete Agreements, plus
(i) payments due for the deferred purchase price of property and services (but
excluding trade payables that are less than 90 days old or by that agreement
among the parties are under twelve months old and any thereof that are being
contested in good faith).
"GAAP" means generally accepted accounting principles applied on a
consistent basis. Application on a consistent basis shall mean that the
accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period, except for new
developments or statements promulgated by the Financial Accounting Standards
Board.
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"Guarantors" means the Parent and each Restricted Subsidiary and each
other Person from time to time guaranteeing payment of the Obligations to the
Administrative Agent and Lenders.
"Guaranty" of a Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes liable upon, the obligation of any
other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor or
such other Person against loss, including, without limitation, any agreement
which assures any creditor or such other Person payment or performance of any
obligation, or any take-or-pay contract and shall include, without limitation,
the contingent liability of such Person in connection with any application for
a letter of credit (without duplication of any amount already included in its
Debt).
"Hazardous Materials" means all materials subject to any Environmental
Law, including, without limitation materials, listed in 49 C.F.R. ss. 172.101,
Hazardous Substances, explosive or radioactive materials, hazardous or toxic
wastes or substances, petroleum or petroleum distillates, asbestos or material
containing asbestos.
"Hazardous Substances" means hazardous waste as defined in the Clean
Water Act, 33 U.S.C. ss. 1251 et seq., the Comprehensive Environmental Response
Compensation and Liability Act as amended by the Superfund Amendments and
Reauthorization Act, 42 U.S.C. ss. 9601 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. ss. 6901 et seq., and the Toxic Substances Control Act,
15 U.S.C. ss. 2601 et seq.
"Highest Lawful Rate" means at the particular time in question the
maximum rate of interest which, under Applicable Law, Administrative Agent is
then permitted to charge on the Obligations. If the maximum rate of interest
which, under Applicable Law, such Lender is permitted to charge on the
Obligations shall change after the date hereof, the Highest Lawful Rate shall
be automatically increased or decreased, as the case may be, from time to time
as of the effective time of each change in the Highest Lawful Rate without
notice to the Borrower. For purposes of determining the Highest Lawful Rate
under Applicable Law, the applicable rate ceiling shall be (a) the indicated
rate ceiling described in and computed in accordance with the provisions of
Art. lH; or (b) either the annualized ceiling or quarterly ceiling computed
pursuant to .008 of Art. 1D; provided, however, that at any time the indicated
rate ceiling, the annualized ceiling or the quarterly ceiling, as applicable,
shall be less than 18% per annum or more than 24% per annum, the provisions of
Sections .009(a) and .009(b) of said Art. lD shall control for purposes of such
determination, as applicable.
"Indemnitees" has the meaning ascribed thereto in Section 6.09 hereof.
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"Indenture" means the Indenture dated as of October 1, 1997 between
World Access, Inc. and First Union National Bank, as Trustee, providing for the
Subordinated Notes, as amended, restated, supplemented or otherwise modified
from time to time.
"Initial Advance" means the initial Advance made in accordance with
the terms hereof, which shall only be after the Borrower has satisfied each of
the conditions set forth in Section 4.01 and Section 4.02 hereof (or any such
condition shall have been waived by each Lender).
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities within the meaning of Section 4001(a)(18)
of ERISA.
"Interest Coverage Ratio" means as of any date of determination, the
ratio of (a) Operating Cash Flow for the most recently completed four fiscal
quarters, to (b) Total Interest Expense for the most recently completed four
fiscal quarters.
"Interest Hedge Agreements" means any interest rate swap agreements,
interest cap agreements, interest rate collar agreements, or any similar
agreements or arrangements designed to hedge the risk of variable interest rate
volatility, or foreign currency hedge, exchange or similar agreements, on terms
and conditions reasonably acceptable to Administrative Agent (evidenced by
Administrative Agent's consent in writing), as such agreements or arrangements
may be modified, supplemented and in effect from time to time, and
notwithstanding the above, fixed rate Debt for Borrowed Money shall be deemed
an Interest Hedge Agreement.
"Interest Period" means, with respect to any LIBOR Advance, the period
beginning on the date an Advance is made or continued as or converted into a
LIBOR Advance and ending one, two, three or six months thereafter (as the
Borrower shall select) provided, however, that:
(a) the Borrower may not select any Interest Period that ends
after any principal repayment date unless, after giving effect to such
selection, the aggregate principal amount of LIBOR Advances having
Interest Periods that end on or prior to such principal repayment date
shall be at least equal to the principal amount of Advances due and
payable on and prior to such date;
(b) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, however, that if such extension would cause
the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day; and
(c) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the
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19
number of months in such Interest Period, such Interest Period shall
end on the last Business Day of such succeeding calendar month.
"Investment" means any acquisition of all or substantially all assets
of any Person, or any direct or indirect purchase or other acquisition of, or a
beneficial interest in, capital stock or other securities of any other Person,
or any direct or indirect loan, advance (other than advances to employees for
moving and travel expenses, entertainment expenses, drawing accounts and
similar expenditures in the ordinary course of business), or capital
contribution to or investment in any other Person, including without limitation
the incurrence or sufferance of Debt or accounts receivable of any other Person
that are not current assets or do not arise from sales to that other Person in
the ordinary course of business.
"Issuing Bank" means Bank Austria AG.
"Law" means any constitution, statute, law, ordinance, regulation,
rule, order, writ, injunction or decree of any Tribunal.
"Lenders" means the lenders listed on the signature pages of this
Agreement, and each Eligible Assignee which hereafter becomes a party to this
Agreement pursuant to Section 10.04 hereof, for so long as any such Person is
owed any portion of the Obligations or obligated to make any Advances.
"Lending Office" means, with respect to each Lender, its branch or
affiliate, (a) initially, the office of such Lender, branch or affiliate
identified as such on the signature pages hereof, and (b) subsequently, such
other office of such Lender, branch or affiliate as such Lender may designate
to the Borrower and Administrative Agent as the office from which the Advances
of such Lender will be made and maintained and for the account of which all
payments of principal and interest on the Advances and the Commitment Fees will
thereafter be made. Lenders may have more than one Lending Office for the
purpose of making Base Rate Advances and LIBOR Advances.
"Letter of Credit" means collectively those direct pay or standby
commercial letters of credit issued pursuant to Article III hereof , the Bond
Letter of Credit, and any other letters of credit issued by Bank Austria AG for
the account of the Parent, the Borrowers, or the Restricted Subsidiaries.
"Letter of Credit Commitment" means, on any date of determination, an
amount equal to the lesser of (a) $25,000,000 and (b) the Available Commitment
minus all outstanding Advances and Letters of Credit.
"LIBOR Advance" means an Advance bearing interest at the LIBOR Rate.
"LIBOR Rate" means a simple per annum interest rate equal to the
lesser of (a) the Highest Lawful Rate, and (b) the sum of the LIBOR Rate Basis
plus the Applicable Margin. The
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LIBOR Rate shall, with respect to LIBOR Advances subject to reserve or deposit
requirements, be subject to premiums assessed therefor by each Lender, which
are payable directly to each Lender. Once determined, the LIBOR Rate shall
remain unchanged during the applicable Interest Period.
"LIBOR Rate Basis" means, for any LIBOR Advance for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any
reason such rate is not available, the term "LIBOR Rate Basis" shall mean, for
any LIBOR Advance for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates.
"License" means, as to any Person, any license, permit, certificate of
need, authorization, certification, accreditation, franchise, approval, or
grant of rights by any Tribunal or third person necessary or appropriate for
such Person to own, maintain, or operate its business or Property, including
FCC Licenses.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien, or charge of any kind, including without limitation any agreement to give
or not to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, and the filing of or
agreement to give any financing statement or other similar form of public
notice under the Laws of any jurisdiction (except for the filing of a financing
statement or notice in connection with an operating lease).
"Litigation" means any proceeding, claim, lawsuit, arbitration, and/or
investigation conducted or threatened by or before any Tribunal, including
without limitation proceedings, claims, lawsuits, and/or investigations under
or pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, Tax, or other Law, or under or pursuant to any
contract, agreement, or other instrument.
"Loan Papers" means this Agreement; the Notes; Interest Hedge
Agreements executed among any Obligor and any Lender or Bank Affiliate; all
Pledge Agreements; all Letters of Credit; all Guaranties executed by any Person
guaranteeing payment of any portion of the Obligations; all Fee Letters; each
Assignment and Acceptance; all promissory notes evidencing any portion of the
Obligations; assignments, security agreements and pledge agreements granting
any interest in any of the Collateral; stock certificates and partnership
agreements constituting part of the Collateral; mortgages, deeds of trust,
financing statements, collateral assignments, and other documents and
instruments granting an interest in any portion of the Collateral, or related
to the
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perfection and/or the transfer thereof, all collateral assignments or other
agreements granting a Lien on any intercompany note, including without
limitation, all other documents, instruments, agreements or certificates
executed or delivered by the Borrower or any other Obligor, as security for the
Borrower's obligations hereunder, in connection with the loans to the Borrower
or otherwise; as each such document shall, with the consent of the Lenders
pursuant to the terms hereof, be amended, revised, renewed, extended,
substituted or replaced from time to time.
"Majority Lenders" means any combination of Lenders having at least
66.67% of the aggregate amount of Advances under the Facility; provided,
however, that if no Advances are outstanding under this Agreement, such term
means any combination of Lenders having a Specified Percentage equal to at
least 66.67% of the Facility.
"Management Fees" means all fees from time to time directly or
indirectly (including any payments made pursuant to guarantees of such fees)
paid or payable by the Borrower, the Parent, or any of the Restricted
Subsidiaries to any Person for management services for managing any portion of
the Borrower's, the Parent's or the Restricted Subsidiaries' business.
"Material Adverse Change" means any circumstance or event that (a) can
reasonably be expected to cause a Default or an Event of Default, (b) otherwise
can reasonably be expected to (i) be material and adverse to the continued
operation of the Parent, the Borrower and the Restricted Subsidiaries taken as
a whole, or (ii) be material and adverse to the financial condition, business
operations, prospects or Properties of the Parent, the Borrower and the
Restricted Subsidiaries taken as a whole, or (c) in any manner whatsoever does
or can reasonably be expected to materially and adversely affect the validity
or enforceability of any of the Loan Papers.
"Maturity Date" means December 30, 2001, or such earlier date all of
the Obligations become due and payable (whether by acceleration, prepayment in
full, scheduled reduction or otherwise).
"Maximum Amount" means the maximum amount of interest which, under
Applicable Law, Administrative Agent or any Lender is permitted to charge on
the Obligations.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower, any Subsidiary of the Borrower or
any ERISA Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant to one or
more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower, any Subsidiary of the Borrower, or any ERISA Affiliate and at least
one Person other than the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate, or (b) was so maintained and in respect of which the
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Borrower, any Subsidiary of the Borrower or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been
or were to be terminated.
"Net Proceeds" means the gross proceeds received by the Borrower, the
Parent or any Restricted Subsidiary in connection with or as a result of any
Asset Sale, minus (so long as each of the following are estimated in good faith
by the Vice President - Chief Financial Officer of the Borrower, the Parent or
such Restricted Subsidiary and certified to the Lenders in reasonable detail by
an Authorized Officer) (a) amounts paid or reserved in good faith, if any, for
taxes payable with respect to such Asset Sale in an amount equal to the tax
liability of the Borrower, the Parent, or any Restricted Subsidiary in respect
of such sale (taking into account all other tax benefits of each of the
parties) and (b) reasonable and customary transaction costs payable by the
Borrower, the Parent or any Restricted Subsidiary related to such sale.
"Non-Compete Agreement" means any agreement or related set of
agreements under which the Borrower or any Restricted Subsidiary agrees to pay
money in one or more installments to one or more Persons in exchange for
agreements from such Persons to refrain from competing with the Borrower or
such Restricted Subsidiary in a certain line of business in a specific
geographical area for a certain time period, or pursuant to which any Person
agrees to limit or restrict its right to engage, directly or indirectly, in the
same or similar industry for any period of time for any geographic location.
"Notes" means the promissory notes of the Borrower evidencing the
Advances and obligations owing hereunder to each Lender, in substantially the
form of Exhibit A hereto, each payable to the order of each Lender, as each
such note may be amended, extended, restated, renewed, substituted or replaced
from time to time.
"Obligations" means all present and future obligations, indebtedness
and liabilities, and all renewals and extensions of all or any part thereof, of
the Borrower and each other Obligor to Lenders, the Issuing Bank, and
Administrative Agent arising from, by virtue of, or pursuant to this Agreement,
any of the other Loan Papers and any and all renewals and extensions thereof or
any part thereof, or future amendments thereto, all interest accruing on all or
any part thereof and reasonable attorneys' fees incurred by Lenders, the
Issuing Bank, and Administrative Agent for the administration, execution of
waivers, amendments and consents, and in connection with any restructuring,
workouts or in the enforcement or the collection of all or any part thereof,
whether such obligations, indebtedness and liabilities are direct, indirect,
fixed, contingent, joint, several or joint and several. Without limiting the
generality of the foregoing, "Obligations" includes all amounts which would be
owed by the Borrower, each other Obligor and any other Person (other than
Administrative Agent or Lenders) to Administrative Agent or Lenders under any
Loan Paper, but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar proceeding
involving the Borrower, any other Obligor or any other Person (including all
such amounts which would become due or would be secured but for the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding of the Borrower, any other Obligor or any
other Person under any Debtor Relief Law).
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"Obligor" means the Borrower, the Parent, the Restricted Subsidiaries
and any other Person liable to the Lenders under the Loan Papers.
"Operating Cash Flow" means, for the Parent, Borrower and the
Restricted Subsidiaries, for any period, determined in accordance with GAAP,
the consolidated net income (loss) (including, without limitation, 100% of the
net income (loss) of NACT Telecommunications, Inc.) for such period taken as a
single accounting period, excluding extraordinary gains and losses, plus the
sum of the following amounts for such period to the extent included in the
determination of such consolidated net income: (a) depreciation expense, (b)
amortization expense and other non-cash charges reducing income, (c) Total
Interest Expense, (d) total cash income tax expense plus (e) extraordinary
losses minus (f) extraordinary gains and (g) non cash income; provided, the
calculation is made after giving effect to acquisitions and dispositions of
assets of the Borrower or any Restricted Subsidiary during such period as if
such transactions had occurred on the first day of such period.
"Operating Leases" means operating leases, as defined in accordance
with GAAP.
"Parent" means collectively, World Access, Inc. and WA Telecom
Products Co., Inc.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Permitted Acquisitions" means cash acquisitions made by the Borrower
or any Restricted Subsidiary of Capital Stock or assets of Persons engaged in
telecommunications equipment manufacturing, long distance and long-haul carrier
and related businesses not in excess of $75,000,000 in the aggregate (excluding
the acquisition of Telco Systems, Inc.), so long as in each case (a) there
exists no Default or Event of Default both before and after giving effect to
any such acquisition, (b) such acquired entity becomes a Restricted Subsidiary
and executes a Guaranty of the Obligations, or such acquired assets are
acquired by a Restricted Subsidiary, (c)(i) in the case of an acquisition of
Capital Stock, 100% of the Capital Stock, and (ii) in all cases, all of the
assets of the Person being acquired, are pledged to the Lenders on a first Lien
basis, (d) no more than $50,000,000 of the Unused Commitment is used to make
such acquisition, and (e) the Borrower provides the Administrative Agent and
each Lender with information demonstrating pro forma compliance with the terms
of this Agreement through the Maturity Date, after giving effect to such
Permitted Acquisition, including, without limitation, each provision of Section
7.01 hereof.
"Permitted Dispositions" means provided that no Default or Event of
Default exists or would result therefrom (i) the sales of receivables by the
Borrower for the purpose of factoring not to exceed at any one time
$16,000,000, (ii) sales of the $6,430,250 receivable payable by Grupo Iusacell,
S.A. de C.B., due January 1, 1999, (iii) the sale by the Borrower of certain
real property located in Provo, Utah, (iv) the sale by the Borrower of the RTP
operations in Dallas, Texas, (v) the sale or issuance of the Capital Stock of
any Subsidiary of the Borrower to the
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Borrower or to any other Subsidiary of the Borrower, and (vi) sales in the
ordinary course of business, including, without limitation, dispositions of
obsolete or useless assets.
"Permitted Liens" means
(a) those imposed by the Loan Papers;
(b) Liens in connection with workers' compensation,
unemployment insurance or other social security obligations (which phrase shall
not be construed to refer to ERISA);
(c) deposits, pledges or liens to secure the performance of
bids, tenders, contracts (other than contracts for the payment of borrowed
money), leases, statutory obligations, surety, customs, appeal, performance and
payment bonds and other obligations of like nature arising in the ordinary
course of business;
(d) mechanics', workers', carriers, warehousemen's,
materialmen's, landlords' or other like Liens arising in the ordinary course of
business with respect to obligations which are not due or which are being
contested in good faith and by appropriate proceedings diligently conducted;
(e) Liens for taxes, assessments, fees or governmental
charges or levies not delinquent or which are being contested in good faith and
by appropriate proceedings diligently conducted, and in respect of which
adequate reserves shall have been established in accordance with GAAP on the
books of the Borrower or any Restricted Subsidiary;
(f) Liens or attachments, judgments or awards against the
Borrower with respect to which an appeal or proceeding for review shall be
pending or a stay of execution shall have been obtained, and which are
otherwise being contested in good faith and by appropriate proceedings
diligently conducted, and in respect of which adequate reserves shall have been
established in accordance with GAAP on the books of the Borrower or any
Restricted Subsidiary; and
(g) Liens in existence on the Closing Date and described on
Schedule 5.08 hereto; and
(h) easements, rights of way, restrictions, leases of
Property to others, easements for installations of public utilities, title
imperfections and restrictions, zoning ordinances and other similar
encumbrances affecting Property which in the aggregate do not materially
adversely affect the value of such Property or materially impair its use for
the operation of the business of the Borrower; and
(i) Lien on Provo Utah property securing Debt For Borrowed
Money in an aggregate principal amount not exceeding $5,000,000.
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"Person" means an individual, partnership, joint venture, corporation,
trust, Tribunal, unincorporated organization and government, or any department,
agency or political subdivision thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge Agreement" means each Security Agreement and each Pledge and
Security Agreement, whereby the Pledged Interests are pledged to Administrative
Agent and a security interest is granted in the assets of the Borrower and
Restricted Subsidiaries to secure the Obligations, each substantially in the
form of Exhibit C hereto, as each such agreement may be amended, modified,
extended, renewed, restated, substituted or replaced from time to time.
"Pledged Interests" means (a) a first perfected security interest in
100% of the Capital Stock of the Borrower and WA Telecom Products Co., Inc.;
(b) a first perfected security interest in 100% of the Capital Stock of each
Restricted Subsidiary, if any, now existing or hereafter formed or acquired;
and (c) a first perfected security interest in 65% of the Capital Stock of each
Unrestricted Subsidiary, if any, now existing or hereafter formed or acquired.
"Prohibited Transaction" has the meaning specified therefor in Section
4975 of the Code or Section 406 of ERISA.
"Property" means all types of real, personal, tangible, intangible or
mixed property, whether owned in fee simple or leased.
"Quarterly Date" means the last Business Day of each March, June,
September and December during the term of this Agreement, commencing on
December 31, 1998.
"Ratable" means, as to any Lender, in accordance with its Specified
Percentage.
"Refinancing Advance" means an Advance that is used to pay the
principal amount of an existing Advance (or any performance thereof) at the end
of its Interest Period and which, after giving effect to such application, does
not result in an increase in the aggregate amount of outstanding Advances.
"Regulatory Change" means any change after the date hereof in federal,
state or foreign Laws (including, the introduction of any new Law) or the
adoption or making after such date of any interpretations, directives or
requests of or under any federal, state or foreign Laws (whether or not having
the force of Law) by any Tribunal charged with the interpretation or
administration thereof, applying to a class of financial institutions that
includes any Lender, excluding, however, any such change which results in an
adjustment of the LIBOR Reserve Percentage and the effect of which is reflected
in a change in the LIBOR Rate as provided in the definition of such term.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events
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as to which the PBGC by regulation waived the requirement under Section 4043(a)
of ERISA that it be notified within 30 days of the occurrence of such event,
provided that a failure to meet the minimum funding standard under Section 412
of the Code and under Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waivers in accordance with either
Section 4043(a) of ERISA or Section 412(d) of the Code.
"Restricted Payments" means (a) any direct or indirect distribution,
Distribution or other payment on account of any general or limited partnership
interest in (or the setting aside of funds for, or the establishment of a
sinking fund or analogous fund with respect to), or shares of Capital Stock or
other securities of, the Borrower, the Parent or any Restricted Subsidiary; (b)
any payments of principal of, or interest on, or fees related to, or any other
payments and prepayments with respect to, or the establishment of, or any
payment to, any sinking fund or analogous fund for the purpose of making any
such payments on, Funded Debt of the Borrower, the Parent or any Restricted
Subsidiary (excluding the Obligations); (c) any Management Fee or any interest
thereon, payable by the Borrower, the Parent, or any Restricted Subsidiary to
any Affiliate of the Borrower or Parent or to any other Person; (d) any
administration fee or any administration, consulting or other similar fees, or
any interest thereon, payable by the Borrower, the Parent or any Restricted
Subsidiary to any Affiliate of Parent or the Borrower or to any other Person,
but not including fees for investment banking or accounting services or other
similar kinds of consulting fees in the ordinary course of business; (e) any
payments of any amounts owing under any Non-Compete Agreements; and (f) fees,
loans or other payments or advances by the Borrower, the Parent or any
Restricted Subsidiary to any Unrestricted Subsidiary or any other Affiliate of
the Parent or the Borrower.
"Restricted Subsidiaries" means all of the direct or indirect
Subsidiaries of the Parent and the Borrower and of their Restricted
Subsidiaries, including without limitation, those described on Schedule 1.01
attached hereto; and "Restricted Subsidiary" means any one of them, as
applicable in the context.
"Rights" means rights, remedies, powers, and privileges.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, other than a Multiple Employer Plan, that is
maintained for employees of the Borrower or any ERISA Affiliate.
"Solvent" means, with respect to any Person, that on such date (a) the
fair value of the Property of such Person is greater than the total amount of
liabilities, including, without limitation, Contingent Liabilities of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (d) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
Property would constitute an unreasonably small capital.
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"Special Counsel" means the law firm of Donohoe, Jameson & Carroll,
P.C., Dallas, Texas, special counsel to Administrative Agent, or such other
counsel selected by Administrative Agent from time to time.
"Specified Percentage" means, as to any Lender, the percentage
indicated beside its name on the signature pages hereof, or as adjusted or
specified in any Assignment and Acceptance, or amendment to this Agreement.
"Subordinated Debt" means subordinated indebtedness of the Borrower
incurred in accordance with the terms of Section 7.02(f)(ii) hereof.
"Subordinated Notes" means the $115,000,000 4.5% Convertible
Subordinated Notes due 2002.
"Subsidiary" of any Person means any corporation, partnership, limited
liability company, joint venture, trust or estate of which (or in which) more
than 50% of:
(a) the outstanding Capital Stock having voting power to
elect a majority of the Board of Directors of such corporation (or
other Persons performing similar functions of such entity, and
irrespective of whether at the time Capital Stock of any other class
or classes of such corporation shall or might have voting power upon
the occurrence of any contingency),
(b) the interest in the capital or profits of such
partnership or joint venture, or
(c) the beneficial interest of such trust or estate,
is at the time directly or indirectly owned by (i) such Person, (ii)
such Person and one or more of its Subsidiaries or (iii) one or more
of such Person's Subsidiaries.
"Taxes" means all taxes, assessments, imposts, fees or other charges
at any time imposed by any Laws or Tribunal.
"Term Loan" means that certain Term Loan made to the Borrower on the
Conversion Date in accordance with Sections 2.01 and 2.16(b) hereof.
"Total Debt" means, without duplication, with respect to the Parent,
the Borrower and the Restricted Subsidiaries, Funded Debt (including, without
limitation, recourse factoring and third- party financing arrangements and any
overdue interest on such indebtedness, but excluding any accrued but not
overdue interest on any indebtedness), calculated on a consolidated basis in
accordance with GAAP.
"Total Interest Expense" means as of any date of determination for any
period of calculation, the Parent's, Borrower's and the Restricted
Subsidiaries' consolidated interest
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expense included in a consolidated income statement (after deduction of
interest income) on Total Debt for such period calculated on a consolidated
basis in accordance with GAAP, including, without limitation or duplication
(or, to the extent not so included, with the addition of), for the Parent, the
Borrower and the Restricted Subsidiaries: (a) the amortization of Debt
discounts; (b) any commitment fees or agency fees related to any Funded Debt,
but specifically excluding any one-time facility and/or arrangement fees
associated with the Facility; (c) any fees or expenses with respect to letters
of credit, bankers' acceptances or similar facilities; (d) fees and expenses
with respect to interest rate swap or similar agreements or foreign currency
hedge, exchange or similar agreements, other than fees or charges related to
the acquisition or termination thereof which are not allocable to interest
expense in accordance with GAAP; (e) preferred stock Distributions for the
Borrower and the Restricted Subsidiaries declared and payable in cash; and (f)
interest capitalized in accordance with GAAP.
"Total Leverage Ratio" means as of any date of determination, the
ratio of (a) Total Debt of the Parent, the Borrower and the Restricted
Subsidiaries on such date of determination to (b) Annualized Operating Cash
Flow, all calculated on a consolidated basis in accordance with GAAP
consistently applied.
"Tribunal" means any state, commonwealth, federal, foreign,
territorial or other court or government body, subdivision, agency, department,
commission, board, bureau or instrumentality of a governmental body.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and LIBOR Rate.
"UCC" means the Uniform Commercial Code as adopted in the State of
Texas.
"Unavailable Commitment" means (a) prior to June 30, 1999, $25,000,000
(as such amount may be reduced from time to time as a result of the
reallocation of any portion of the Unavailable Commitment to the Available
Commitment in accordance with the terms of Section 2.17 hereof), and (b) on and
after June 30, 1999, $0.00.
"Unrestricted Subsidiary" means World Access, Ltd, World Access de
Mexico, S.A., WAXS Limitada, Telco Systems Asia/Pacific Ltd., Telco Indemnity
Corp., Telco Systems, Ltd., TSI Exports Ltd., Cherry Communications U.K.
Limited, and World Access U.K., Ltd., and, with the prior written consent of
the Majority Lenders, any other Subsidiary of the Parent designated as an
"Unrestricted Subsidiary" by the Borrower from time to time.
"Unused Commitment" means, on any date of determination, the Available
Commitment as in effect on such date, minus all outstanding Advances on such
date.
"Withdrawal Liability" has the meaning given such term under Part I of
Subtitle E of Title IV of ERISA.
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"Year 2000 Compliant" means, with respect to a Person, that all
computer hardware and software that are material to the business and operations
of such Person will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000,
including functions with respect to any leap year.
1.02. Accounting and Other Terms. All accounting terms used in this
Agreement which are not otherwise defined herein shall be construed in
accordance with GAAP consistently applied on a consolidated basis for Borrower
and the Restricted Subsidiaries, unless otherwise expressly stated herein.
References herein to one gender shall be deemed to include all other genders.
Except where the context otherwise requires, all references to time are deemed
to be Central Standard time.
ARTICLE II. AMOUNTS AND TERMS OF ADVANCES
2.01.The Facility. Each Lender severally agrees, on the terms and
subject to the conditions hereinafter set forth, from the Closing Date until
the Conversion Date, to make Advances under the Available Commitment to the
Borrower on any Business Day during the period from the Closing Date of this
Agreement until the Conversion Date, in an aggregate principal amount not to
exceed at any time outstanding such Lender's Specified Percentage of the
Available Commitment. Subject to the terms and conditions of this Agreement,
until the Conversion Date, the Borrower may borrow, repay and reborrow the
Advances under the Available Commitment. The Borrower shall repay all
outstanding Advances on the Conversion Date, unless on the Conversion Date, the
Borrower elects to convert to a Term Loan provided that the conditions set
forth in Section 2.16(b) are complied with, at which point the Borrower may not
borrow, repay and reborrow the Advances under the Available Commitment, all
Advances under the Available Commitment being Refinancing Advances on and after
the Conversion Date. The aggregate amount of all outstanding Advances under the
Term Loan shall be due and payable on the Maturity Date.
2.02. Making Advances.
(a) Each Borrowing of Advances shall be made upon the written
notice of the Borrower, received by Administrative Agent not later than (i)
12:00 noon three Business Days prior to the proposed date of the Borrowing, in
the case of LIBOR Advances, and (ii) not later than 10:00 a.m. on the date of
such Borrowing, in the case of Base Rate Advances. Each such notice of a
Borrowing (a "Borrowing Notice") shall be by telecopy, promptly confirmed by
letter, in substantially the form of Exhibit F hereto specifying therein:
(i) the date of such proposed Borrowing, which shall
be a Business Day;
(ii) the amount of such proposed Borrowing which, (A)
prior to the Conversion Date, shall not when aggregated together with
all other outstanding Advances exceed the Available Commitment, and
(B) shall, in the case of a Borrowing of LIBOR Advances, be in an
amount of not less than $1,000,000 or an integral multiple of $500,000
in excess
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thereof and, in the case of a Borrowing of Base Rate Advances, be in
an amount of not less than $500,000 or an integral multiple of
$100,000 in excess thereof;
(iii) the Type of Advances of which the Borrowing is to be
comprised; and
(iv) if the Borrowing is to be comprised of LIBOR
Advances, the duration of the initial Interest Period applicable to
such Advances.
If the Borrowing Notice fails to specify the duration of the initial
Interest Period for any Borrowing comprised of LIBOR Advances, such Interest
Period shall be one month. Each Lender shall, before 1:00 p.m. on the date of
each Advance prior to the Conversion Date (other than a Refinancing Advance),
make available to
Administrative Agent
NationsBank Plaza
901 Main Street
14th Floor
Dallas, Texas 75202
such Lender's Specified Percentage of the aggregate Advances, to be made on
that day in immediately available funds.
(b) Unless any applicable condition specified in Article IV hereof has
not been satisfied, Administrative Agent will make the funds on Advances under
the Facility promptly available to the Borrower (other than with respect to a
Refinancing Advance) at such account as shall have been specified by the
Borrower.
(c) After giving effect to any Borrowing, (i) there shall not be more
than ten different Interest Periods in the aggregate in effect under the
Facility and (ii) if prior to the Conversion Date, the aggregate principal of
outstanding Advances shall not exceed the Available Commitment.
(d) No Interest Period for a Borrowing under the Facility shall extend
beyond the Conversion Date or the Maturity Date.
(e) Unless a Lender shall have notified Administrative Agent prior to
the date of any Advance that it will not make available its Specified
Percentage of any Advance, Administrative Agent may assume that such Lender has
made the appropriate amount available in accordance with Section 2.02(a), and
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent any Lender shall not
have made such amount available to Administrative Agent, such Lender and the
Borrower severally agree to repay to Administrative Agent immediately on demand
such corresponding amount together with interest thereon, from the date such
amount is made available to the Borrower until
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the date such amount is repaid to Administrative Agent, at (i) in the case of
the Borrower, the Base Rate, and (ii) in the case of such Lender, the Federal
Funds Rate.
(f) The failure by any Lender to make available its Specified
Percentage of any Advance hereunder shall not relieve any other Lender of its
obligation, if any, to make available its Specified Percentage of any Advance.
In no event, however, shall any Lender be responsible for the failure of any
other Lender to make available any portion of any Advance.
(g) The Borrower shall indemnify each Lender against any Consequential
Loss incurred by each Lender as a result of (i) any failure by the Borrower to
fulfill, on or before the date specified for the Advance, the conditions to the
Advance set forth herein or (ii) the Borrower's requesting that an Advance not
be made on the date specified in the Borrowing Notice.
2.03. Evidence of Indebtedness .
(a) The obligations of the Borrower with respect to all Advances made
by each Lender shall be evidenced by a Note and in the amount of such Lender's
Specified Percentage of the Available Commitment (as the same may be modified
pursuant to Section 10.04 hereof).
(b) Absent manifest error, Administrative Agent's and each Lender's
records shall be conclusive as to amounts owed Administrative Agent and such
Lender under the Notes and this Agreement.
2.04. Reduction of Available Commitments .
(a) Voluntary Commitment Reduction. The Borrower shall have the right
from time to time upon notice by the Borrower to the Administrative Agent not
later than 1:00 p.m., three Business Days in advance, to reduce prior to the
Conversion Date, the Available Commitment, in whole or in part; provided,
however, that the Borrower shall pay the accrued commitment fee on the amount
of each such reduction, if any, and any partial reduction shall be in an
aggregate amount which is not less than $1,000,000 and an integral multiple of
$500,000. Such notice shall specify the amount of reduction and the proposed
date of such reduction.
(b) Mandatory Commitment Reductions.
(i) Scheduled Reductions in the Commitment. Unless the
Borrower elects to convert to a Term Loan in accordance with Section
2.16(b) hereof, the Available Commitment shall be reduced to zero on
the Conversion Date.
(ii) Asset Sales. On the date of any Asset Sale by any of
the Borrowers (other than Asset Sales, the proceeds of which are
reinvested within 180 days after any such Asset Sale by the Borrower
in like or similar assets to those which were disposed of)(this
provision not permitting such Asset Sales), the Available Commitment
shall be
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automatically and permanently reduced by an amount equal to 100% of
the Net Proceeds from such Asset Sales. On such date, the Borrower
shall deliver to Administrative Agent a certificate of an Authorized
Officer certifying as to the amount of (including the calculation of)
the reduction of the Available Commitment, and, with respect to the
Asset Sale giving rise thereto, the gross proceeds thereof and the
costs and expenses payable as a result thereof which were deducted in
determining the amount of Net Proceeds.
(iii) Debt Issuance. On the date of any issuance of
public or private Funded Debt by the Borrower (this provision not
permitting such Debt issuance) other than Debt For Borrowed Money
permitted by Section 7.02 hereof, the Available Commitment shall be
automatically and permanently reduced by an amount equal to 100% of
the net proceeds from the issuance of such Debt. On such date, the
Borrower shall deliver to the Administrative Agent a certificate of an
Authorized Officer certifying as to the amount of (including the
calculation of) such reduction in the Available Commitment, and, with
respect to the Debt issuance giving rise thereto, the gross proceeds
thereof and the costs and expenses payable as a result thereof which
were deducted in determining the amount of net proceeds of such Debt
issuance.
(iv) Change of Control. If a Change of Control occurs,
the Available Commitment shall be automatically and permanently
reduced to zero.
(v) Equity Issuances. On the date of any issuance of
equity by any of the Borrowers or the Parent (other than (i) the
issuance of common stock or options or rights to purchase common stock
of any of the Borrowers to employees and directors pursuant to stock
purchase plans or grant plans, or otherwise; and provided that no
Default or Event of Default exists or would result from the following
issuances of Capital Stock: (ii) issuances of Capital Stock pursuant
to Earn-Out Liabilities contained in agreements to which the Borrower,
the Parent or any Restricted Subsidiaries is currently a party; (iii)
issuances of common stock in the Parent; and (iv) issuances of
convertible preferred stock of the Parent on terms and provisions
acceptable to the Lenders), the Available Commitment shall be
automatically and permanently reduced by an amount equal to 100% of
the net proceeds from the issuance of such equity. On such date, the
Borrower shall deliver to Administrative Agent a certificate of an
Authorized Officer certifying as to the amount of (including the
calculation of) the reduction of the Available Commitment, and, with
respect to the equity issuance giving rise thereto, the gross proceeds
thereof and the costs and expenses payable as a result thereof which
were deducted in determining the amount of net proceeds of such equity
issuance.
(c) Commitment Reductions, Generally. To the extent the sum of the
aggregate outstanding Advances exceed the Available Commitment after any
reduction thereof, prior to or on the Conversion Date, the Borrower shall
immediately repay on the date of such reduction, any such excess amount and all
accrued interest thereon, together with any amounts constituting any
Consequential Loss. Once reduced or terminated pursuant to this Section 2.04,
the Available Commitment may not be increased or reinstated.
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2.05 Prepayments.
(a) Optional Prepayments. The Borrower may, upon at least three Business
Days prior written notice to Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding principal
amount of any Advances in whole or in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid without premium or
penalty other than any Consequential Loss; provided, however, that in the case
of a prepayment of a Base Rate Advance, the notice of prepayment may be given
by telephone by 11:00 a.m. on the date of prepayment. Each partial prepayment
shall, in the case of Base Rate Advances, be in an aggregate principal amount
of not less than $500,000 or a larger integral multiple of $100,000 in excess
thereof and, in the case of LIBOR Advances, be in an aggregate principal amount
of not less than $1,000,000 or a larger integral multiple of $500,000 in excess
thereof. If any notice of prepayment is given, the principal amount stated
therein, together with accrued interest on the amount prepaid and the amount,
if any, due under Section 2.11 and 2.13 hereof, shall be due and payable on
the date specified in such notice.
(b) Mandatory Prepayments.
(i) Asset Sales. (A) Prior to the Conversion Date, on the date of
any Asset Sale (other than Asset Sales, the proceeds of which are
reinvested within 180 days after the Asset Sale by the Borrower in like
or similar assets to those which were disposed of), the Borrower shall
repay the Obligations by an amount equal to 100% of the Net Proceeds
applied to Advances. Any amounts repaying the Term Loan after the
Conversion Date will be applied in the inverse order of maturity and may
not be reborrowed. On such date, the Borrower shall deliver to
Administrative Agent a certificate of an Authorized Officer certifying as
to the amount of (including the calculation of) such repayment and, with
respect to the Asset Sale giving rise thereto, the gross proceeds thereof
and the costs and expenses payable as a result thereof which were deducted
in determining the amount of Net Proceeds.
(ii) Debt Issuances. On the date of any issuance of public or
private Funded Debt by the Borrower (this provision not permitting such
Debt issuance) other than Debt For Borrowed Money permitted by Section
7.02 hereof, the Borrower shall repay the Obligations by an amount equal
to 100% of the net proceeds from such issuance, applied to outstanding
Advances. Any amounts repaying the Term Loan after the Conversion Date
will be applied in the inverse order of maturity and may not be
reborrowed. On such date, the Borrower shall deliver to Administrative
Agent a certificate of an Authorized Officer certifying as to the amount
of (including the calculation of) such repayment and, with respect to the
Debt issuance giving rise thereto, the gross proceeds thereof and the
costs and expenses payable as a result thereof which were deducted in
determining the amount of net proceeds of such Debt issuance.
(iii) Equity Issuances. (A) Prior to the Conversion Date, on the
date of any issuance of equity by Parent or the Borrower (other than (i)
the issuance of common
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stock or options or rights to purchase common stock of the Parent to
employees and directors pursuant to stock purchase plans or grant
plans, or otherwise; and provided that no Default or Event of Default
exists or would result from the following issuances of Capital Stock:
(ii) issuances of Capital Stock pursuant to Earn-Out Liabilities
contained in agreements to which the Borrower, the Parent or any
Restricted Subsidiaries is currently a party; (iii) issuances of
shares of common stock of the Parent; and (iv) issuances of
convertible preferred stock of the Parent on terms and provisions
acceptable to the Lenders), the Borrower shall repay the Obligations
applied to outstanding Advances. Any amounts repaying the Term Loan
after the Conversion Date will be applied in the inverse order of
maturity and may not be reborrowed. On such date, the Borrower shall
deliver to Administrative Agent a certificate of an Authorized Officer
certifying as to the amount of (including the calculation of) such
repayment and, with respect to the equity issuance giving rise
thereto, the gross proceeds thereof and the costs and expenses payable
a s a result thereof which were deducted in determining the amount of
net proceeds of such equity issuance.
(v) Change of Control. If a Change of Control occurs, the
Borrower shall repay the Obligations in full.
(c) Prepayments, Generally. Any prepayment of Advances pursuant to
this Section 2.05 shall be applied first to Base Rate Advances, if any, then
outstanding under the Facility, second to LIBOR Advances for which the date of
prepayment is the last day of the applicable Interest Period, if any,
outstanding under the Facility and third to LIBOR Advances with the shortest
remaining Interest Periods outstanding under the Facility.
2.06. Mandatory Repayment. The Borrower agrees that all Advances
outstanding on the Conversion Date shall be paid in full on the Conversion
Date, unless the Borrower elects to convert on the Conversion Date to a Term
Loan in accordance with the provisions of Section 2.16(b), in which case, all
Obligations are due and payable in full on the Maturity Date.
2.07. Interest. Subject to Section 2.08 below, the Borrower shall pay
interest on the unpaid principal amount of each Advance from the date of such
Advance until such principal shall be paid in full, at the following rates, as
selected by the Borrower in accordance with the provisions of Section 2.02
hereof:
(a) Base Rate Advances. Base Rate Advances shall bear
interest at a rate per annum equal to the lesser of (i) the Base Rate
as in effect from time to time and (ii) the Highest Lawful Rate. If
the amount of interest payable in respect of any interest computation
period is reduced to the Highest Lawful Rate pursuant to the
immediately preceding sentence and the amount of interest payable in
respect of any subsequent interest computation period would be less
than the Maximum Amount, then the amount of interest payable in
respect of such subsequent interest computation period shall be
automatically increased to the Maximum Amount; provided that at no
time shall the aggregate amount by which interest paid has been
increased pursuant to this sentence
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exceed the aggregate amount by which interest has been reduced
pursuant to the immediately preceding sentence.
(b) LIBOR Advances. LIBOR Advances shall bear interest at the
rate per annum equal to the LIBOR Rate applicable to such Advance,
which at no time shall exceed the Highest Lawful Rate.
(c) Payment Dates. Accrued and unpaid interest on Base Rate
Advances shall be paid quarterly in arrears on each Quarterly Date and
on the appropriate maturity, repayment or prepayment date. Accrued and
unpaid interest on LIBOR Advances shall be paid on the last day of the
appropriate Interest Period and on the date of any prepayment or
repayment of such Advance; provided, however, that if any Interest
Period for a LIBOR Advance exceeds three months, interest shall also
be paid on each date occurring during the Interest Period which is the
three month anniversary date of the first day of the Interest Period.
2.08. Default Interest. During the continuation of any Event of
Default, the Borrower shall pay, on demand, interest (after as well as before
judgment to the extent permitted by Law) on the principal amount of all
Advances outstanding and on all other Obligations due and unpaid hereunder
equal to the lesser of the (a) the Highest Lawful Rate and (b) the Base Rate
(whether or not in effect) plus 2.00% per annum.
2.09. Continuation and Conversion Elections .
(a) The Borrower may upon irrevocable written notice to Administrative
Agent and subject to the terms of this Agreement:
(i) elect to convert, on any Business Day, all or any
portion of outstanding Base Rate Advances (in an aggregate amount not
less than $1,000,000 or a larger integral multiple of $500,000 in
excess thereof) into LIBOR Advances.
(ii) elect to convert at the end of any Interest Period
therefor, all or any portion of outstanding LIBOR Advances comprised
in the same Borrowing (in an aggregate amount not less than $500,000
or a larger integral multiple of $100,000 in excess thereof) into Base
Rate Advances; or
(iii) elect to continue, at the end of any Interest Period
therefor, any LIBOR Advances;
provided, however, that if the aggregate amount of outstanding LIBOR Advances
comprised in the same Borrowing shall have been reduced as a result of any
payment, prepayment or conversion of part thereof to an amount less than
$1,000,000, the LIBOR Advances comprised in such Borrowing shall automatically
convert into Base Rate Advances at the end of each respective Interest Period.
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(b) The Borrower shall deliver a notice of conversion or continuation
(a "Notice of Conversion/Continuation"), in substantially the form of Exhibit E
hereto, to Administrative Agent not later than (i) 12:00 noon three Business
Days prior to the proposed date of conversion or continuation, if the Advances
or any portion thereof are to be converted into or continued as LIBOR Advances;
and (ii) not later than 10:00 a.m. on the proposed date of conversion or
continuation, if the Advances or any portion thereof are to be converted into
Base Rate Advances.
Each such Notice of Conversion/Continuation shall be by telecopy or
telephone, promptly confirmed in writing, specifying therein:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Advances to be converted or
continued;
(iii) the nature of the proposed conversion or
continuation; and
(iv) the duration of the applicable Interest Period.
(c) If, upon the expiration of any Interest Period applicable to LIBOR
Advances, the Borrower shall have failed to select a new Interest Period to be
applicable to such LIBOR Advances or if an Event of Default shall then have
occurred and be continuing, the Borrower shall be deemed to have elected to
convert such LIBOR Advances into Base Rate Advances effective as of the
expiration date of such current Interest Period.
(d) Upon receipt of a Notice of Conversion/Continuation,
Administrative Agent shall promptly notify each Lender thereof. All conversions
and continuations shall be made pro rata among Lenders based on their Specified
Percentage of the respective outstanding principal amounts of the Advances with
respect to which such notice was given held by each Lender.
(e) Notwithstanding any other provision contained in this Agreement,
after giving effect to any conversion or continuation of any Advances, there
shall not be outstanding Advances with more than ten different Interest Periods
in the aggregate under the Facility.
2.10. Fees.
(a) Subject to Section 10.09 hereof, the Borrower agrees to pay to
Administrative Agent, for the account of the Lenders in accordance with their
Specified Percentages, a commitment fee on the average daily amount of the
Unused Commitment, from the Closing Date through the Conversion Date, at the
rate of .50% per annum, payable quarterly in arrears on each Quarterly Date
occurring after the Closing Date, with the last such payment due and owing on
the Conversion Date.
(b) Subject to Section 10.09 hereof, the Borrower agrees to pay to
Administrative Agent for its own account as administrative lender and
underwriter, and to NationsBanc
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Montgomery Securities, Inc., as arranger hereunder, such fees as agreed to in
writing among the Borrower and the Administrative Agent and NationsBanc
Montgomery Securities LLC, payable as set forth in that certain Fee Letter
executed among the Borrower, Administrative Agent and NationsBanc Montgomery
Securities LLC in accordance with the terms of the Fee Letter.
2.11. Funding Losses. If the Borrower makes any payment or prepayment
of principal with respect to any LIBOR Advance (including payments made after
any acceleration thereof) or converts any Advance from a LIBOR Advance on any
day other than the last day of an Interest Period applicable thereto, or if the
Borrower fails to prepay, borrow, convert or continue any LIBOR Advance after a
notice of prepayment, borrowing, conversion or continuation has been given (or
is deemed to have been given) to Administrative Agent, the Borrower shall pay
to each Lender on demand (subject to Section 10.09 hereof) any Consequential
Loss. The Borrower agrees that each Lender is not obligated to actually
reinvest the amount prepaid in any specific obligation as a condition to
receiving any Consequential Loss, or otherwise.
2.12. Computations and Manner of Payments.
(a) The Borrower shall make each payment hereunder and under the other
Loan Papers not later than 1:00 p.m. on the day when due in same day funds to
Administrative Agent, for the Ratable account of Lenders unless otherwise
specifically provided herein, at
Administrative Agent
NationsBank Plaza
901 Main Street
14th Floor
Dallas, Texas 75202
for further credit to the account of the Borrower. No later than the end of
each day when each payment hereunder is made, the Borrower shall notify
Administrative Agent, telephone (800) 880-5537, facsimile (214) 508-2515, or
such other Person as Administrative Agent may from time to time specify.
(b) Unless Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due hereunder that the
Borrower will not make payment in full, Administrative Agent may assume that
such payment is so made on such date and may, in reliance upon such assumption,
make distributions to Lenders. If and to the extent the Borrower shall not have
made such payment in full, each Lender shall repay to Administrative Agent
forthwith on demand the applicable amount distributed, together with interest
thereon at the Federal Funds Rate, from the date of distribution until the date
of repayment. The Borrower hereby authorizes each Lender, if and to the extent
payment is not made when due hereunder, to charge the amount so due against any
account of the Borrower with such Lender.
(c) Subject to Section 10.09 hereof, interest on LIBOR Advances shall
be calculated on the basis of actual days elapsed but computed as if each year
consisted of 360 days. Subject
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to Section 10.09 hereof, interest on Base Rate Advances, the Commitment Fees
and other amounts due under the Loan Papers shall be calculated on the basis of
actual days elapsed but computed as if each year consisted of 365 or 366 days,
as the case may be. Such computations shall be made including the first day but
excluding the last day occurring in the period for which such interest, payment
or Commitment Fees is payable. Each determination by Administrative Agent or a
Lender of an interest rate, fee or commission hereunder shall be conclusive and
binding for all purposes, absent manifest error. All payments under the Loan
Papers shall be made in United States dollars and without setoff, counterclaim
or other defense.
(d) Notwithstanding anything herein or in any Loan Paper to the
contrary, any payment made by the Borrower in excess of the Available
Commitment or outstanding Advances, shall be applied to outstanding amounts (or
to reduce the commitment) of any other outstanding Obligations.
(e) Reference to any particular index or reference rate for
determining any applicable interest rate under this Agreement is for purposes
of calculating the interest due and is not intended as and shall not be
construed as requiring any Lender to actually fund any Advance at any
particular index or reference rate.
2.13. Yield Protection.
(a) If any Lender determines that either (i) the adoption, after the
date hereof, of any Applicable Law, rule, regulation or guideline regarding
capital adequacy applicable to commercial banks or financial institutions
generally or any change therein, or any change, after the date hereof, in the
interpretation or administration thereof by any Tribunal, central bank or
comparable agency charged with the interpretation or administration thereof, or
(ii) compliance by any Lender (or Lending Office of any Lender) with any
request or directive made after the date hereof applicable to commercial banks
or financial institutions generally regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency has the effect of reducing the rate of return on such Lender's capital
as a consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such adoption, change or compliance (taking
into consideration such Lender's policies with respect to capital adequacy (but
excluding consequences of such Lender's negligence or intentional disregard of
law or regulation)) by an amount reasonably deemed by such Lender to be
material, then from time to time, within fifteen days after demand by such
Lender, the Borrower shall pay to such Lender such additional amount or amounts
as will adequately compensate such Lender for such reduction. Each Lender will
notify the Borrower of any event occurring after the date of this Agreement
which will entitle such Lender to compensation pursuant to this Section 2.13(a)
as promptly as practicable after such Lender obtains actual knowledge of such
event; provided that no Lender shall be liable for its failure or the failure
of any other Lender to provide such notification. A certificate of such Lender
claiming compensation under this Section 2.13(a), setting forth in reasonable
detail the calculation of the additional amount or amounts to be paid to it
hereunder and certifying that such claim is consistent with such Lender's
treatment of similar customers having similar provisions generally
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in their agreements with such Lender shall be conclusive in the absence of
manifest error. Each Lender shall use reasonable efforts to mitigate the effect
upon the Borrower of any such increased costs payable to such Lender under this
Section 2.13(a).
(b) If, after the date hereof, any Tribunal, central bank or other
comparable authority, at any time imposes, modifies or deems applicable any
reserve (including, without limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit or similar requirement against
assets of, deposits with or for the amount of, or credit extended by, any
Lender, or imposes on any Lender any other condition affecting a LIBOR Advance,
the Notes or its obligation to make a LIBOR Advance; and the result of any of
the foregoing is to increase the cost to such Lender of making or maintaining
LIBOR Advances, or to reduce the amount of any sum received or receivable by
such Lender under this Agreement or under the Notes or reimbursement
obligations by an amount reasonably deemed by such Lender to be material, then,
within five days after demand by such Lender, the Borrower shall pay to such
Lender such additional amount or amounts as will compensate such Lender for
such increased cost or reduction. Each Lender will (i) notify the Borrower and
Administrative Agent of any event occurring after the date of this Agreement
that entitles such Lender to compensation pursuant to this Section 2.13(b), as
promptly as practicable after such Lender obtains actual knowledge of the
event; provided that no Lender shall be liable for its failure or the failure
of any other Lender to provide such notification and (ii) use good faith and
reasonable efforts to designate a different Lending Office for LIBOR Advances
of such Lender if the designation will avoid the need for, or reduce the amount
of, the compensation and will not, in the sole opinion of such Lender, be
disadvantageous to such Lender. A certificate of such Lender claiming
compensation under this Section 2.13(b) setting forth in reasonable detail the
computation of the additional amount or amounts to be paid to it hereunder and
certifying that such claim is consistent with such Lender's treatment of
similar customers having similar provisions generally in their agreements with
such Lender shall be conclusive in the absence of manifest error. If such
Lender demands compensation under this Section 2.13(b), the Borrower may at any
time, on at least five Business Days' prior notice to such Lender, (i) repay in
full the then outstanding principal amount of LIBOR Advances of such Lender,
together with accrued interest thereon, or (ii) convert the LIBOR Advances to
Base Rate Advances in accordance with the provisions of this Agreement;
provided, however, that the Borrower shall be liable for the Consequential Loss
arising pursuant to those actions.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation or administration of
any Law shall make it unlawful, or any central bank or other Tribunal shall
assert that it is unlawful, for a Lender to perform its obligations hereunder
to make LIBOR Advances or to continue to fund or maintain LIBOR Advances
hereunder, then, on notice thereof and demand therefor by such Lender to the
Borrower, (i) each LIBOR Advance will automatically, upon such demand, convert
into a Base Rate Advance, and (ii) the obligation of such Lender to make or to
convert Advances into LIBOR Advances shall be suspended until such Lender
notifies Administrative Agent and the Borrower that such Lender has determined
that the circumstances causing such suspension no longer exist.
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(d) Upon the occurrence and during the continuance of any Default or
Event of Default, (i) each LIBOR Advance will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate Advance
and (ii) the obligation of each Lender to make or to convert Advances into
LIBOR Advances shall be suspended.
(e) Failure on the part of any Lender to demand compensation for any
increased costs, increased capital or reduction in amounts received or
receivable or reduction in return on capital pursuant to this Section 2.13 with
respect to any period shall not constitute a waiver of any Lender's right to
demand compensation with respect to such period or any other period, subject,
however, to the limitations set forth in this Section 2.13.
(f) The term "Lender" for purposes of this Section shall include the
Administrative Agent and the Issuing Bank. The obligations of the Borrower
under this Section 2.13 shall survive any termination of this Agreement.
(g) Determinations by Lenders for purposes of this Section 2.13 shall
be conclusive, absent manifest error. Any certificate delivered to the Borrower
by a Lender pursuant to this Section 2.13 shall include in reasonable detail
the basis for such Lender's demand for additional compensation and a
certification that the claim for compensation is consistent with such Lender's
treatment of similar customers having similar provisions generally in their
agreements with such Lender.
(h) If any Lender notifies Administrative Agent that the LIBOR Rate
for any Interest Period for any LIBOR Advances will not adequately reflect the
cost to such Lender of making, funding or maintaining LIBOR Advances for such
Interest Period, Administrative Agent shall promptly so notify the Borrower,
whereupon (i) each such LIBOR Advance will automatically, on the last day of
the then existing Interest Period therefor, convert into a Base Rate Advance
and (ii) the obligation of such Lender to make or to convert Advances into
LIBOR Advances shall be suspended until such Lender notifies Administrative
Agent that such Lender has determined that the circumstances causing such
suspension no longer exist and Administrative Agent notifies the Borrower of
such fact.
2.14. Use of Proceeds. The proceeds of the Advances shall be available
(and the Borrower shall use such proceeds) to (a) refinance existing Funded
Debt of the Borrower and its Restricted Subsidiaries, (b) fund Capital
Expenditures of the Borrower and the Restricted Subsidiaries permitted by the
terms of this Agreement, and (c) fund Permitted Acquisitions, and (d) use for
general working capital purposes.
2.15. Collateral and Collateral Call.
(a) Collateral. Payment of the Obligations is secured by (i) a first
perfected security interest in 100% of the Capital Stock of the Borrower and
the Restricted Subsidiaries, 100% of the Capital Stock of WA Telecom Products,
Inc., and 65% of the Capital Stock of Unrestricted Subsidiaries, (ii) subject
to Permitted Liens, a first perfected security interest in all of the
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accounts, equipment, inventory, chattel paper, general intangibles, and other
assets of the Borrower, the Restricted Subsidiaries and the Guarantors (other
than real property located in Provo, Utah, the real and personal property used
in the operation of the RTP operations in Dallas, Texas, and the leasehold
interests described in Section 2.15(b) hereof), subject to no other Lien, and
(iii) a Guaranty of the Obligations executed by each Guarantor (collectively,
together with all other Properties or assets of the Borrower, the Restricted
Subsidiaries and other Persons securing the Obligations from time to time, the
"Collateral"). The Borrower agrees that it will, and will cause the Restricted
Subsidiaries, the Parent and Affiliates (except the Unrestricted Subsidiaries)
to, execute and deliver, or cause to be executed and delivered, such documents
as Administrative Agent may from time to time reasonably request to create and
perfect a first Lien, and subject to Permitted Liens, for the benefit of
Administrative Agent and the Lenders in the Collateral.
(b) Collateral Call. The Borrower agrees that it will, and will cause
any other Person owning any interest in the Borrower or any Restricted
Subsidiary or the Parent from time to time to immediately pledge such interest
to secure the Obligations, pursuant to a pledge agreement substantially in the
form of the Pledge Agreements. The Borrower agrees to, and agrees to cause the
Parent and Restricted Subsidiaries to, promptly grant Administrative Agent and
the Lenders from time to time at the request of the Lenders a Lien on any of
the Property of the Borrower, the Parent, and the Restricted Subsidiaries not
already constituting Collateral to the extent permitted by the Indenture,
including, without limitation (on a best efforts basis), Liens on leasehold
estates by no later than 120 days following the Closing Date. In that regard,
the Borrower shall use best efforts to assist Administrative Agent and the
Lenders in creating and perfecting a first Lien for the benefit of
Administrative Agent and the Lenders securing the Obligations in any such
Property of the Borrower, the Parent and the Restricted Subsidiaries, subject
to Permitted Liens, including, without limitation, providing Administrative
Agent with title commitments, appraisals, surveys (with flood plain
certification), mortgagee title insurance, evidence of insurance, including
flood hazard insurance, environmental audits, UCC-11 searches, Tax and Lien
searches, recorded real estate documents, intellectual property documentation
and registration and other similar types of documents, consents,
Authorizations, instruments and agreements relating to all Property of the
Borrower, the Parent and the Restricted Subsidiaries as reasonably requested by
Administrative Agent from time to time.
2.16. Option to Extend the Conversion Date; Option to Convert to Term.
(a) The Borrower shall have the option to extend the Conversion Date
for the entire Available Commitment, for one additional 364-day period, on the
following conditions:
(i) no Default or Event of Default shall exist or shall result from
such extension;
(ii) the Borrower shall have made the request for such extension in
writing to Administrative Agent not later than 30 days prior
to the Conversion Date, setting forth the proposed Conversion
Date as extended; and
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(iii) the Majority Lenders shall have approved such extension not
later than 15 Business Days prior to the Conversion Date,
provided that, notwithstanding such approval by the Majority
Lenders, no Lender shall, without its approval, be required
to extend the Conversion Date with respect to Advances made
by it.
(b) The Borrower shall have the option to convert to the Term Loan on
the Conversion Date on the following conditions:
(i) no Default or Event of Default shall exist or shall result
from such extension;
(ii) the Borrower shall have made the request for such conversion
in writing to Administrative Agent no sooner than 90 days and
not later than 10 days prior to the Conversion Date, electing
to convert to a Term Loan; and
(iii) the Borrower shall execute such Loan Papers in form and
substance satisfactory to Administrative Agent evidencing
such Term Loan as Administrative Agent shall require.
2.17. Conditions Precedent to the Increase of the Available Commitment.
Prior to June 30, 1999, upon written request by the Borrower to
Administrative Agent and the other existing Lenders of its election ten
Business Days prior to the proposed effective date of the proposed increase,
the Available Commitment shall, subject to the further terms and conditions set
forth below, increase to a maximum of $100,000,000 in the manner set forth
below:
(a) On any date of proposed increase, the representations and
warranties contained in Article V hereof are true and correct on such
date, as though made on and as of such date, except to the extent
expressly made only as of a prior date; and
(b) On any date of proposed increase, no Default or Event of
Default shall exist on any such date, and no Default or Event of
Default would result from such increase in the Available Commitment
and the subsequent Advance to the Borrower up to the amount of the
Available Commitment; and
(c) On any date of proposed increase, there shall have
occurred no Material Adverse Change since September 30, 1998; and
(d) On any date of proposed increase, the sum of (i) all
Advances outstanding (after giving effect to any proposed Advance to
be made on such date), plus (ii) the aggregate face amount of all
outstanding Letters of Credit (after giving effect to any proposed
Letter of Credit to be made on such date), plus (iii) (without
duplication) the sum of all reimbursement obligations with respect to
all outstanding Letters of Credit, shall not exceed the Available
Commitment; and
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(e) The proposed increase shall occur prior to June 30, 1999
and the Available Commitment as increased shall not be in excess of
the sum of the Available Commitment prior to such increase plus the
Unavailable Commitment prior to such increase; and
(f) Upon satisfaction of each of the conditions precedent in
this Section 2.17, the Borrower shall be entitled to increase the
Available Commitment not more than one time, in an aggregate amount
for both such increases not to exceed the Unavailable Commitment. Each
Lender specified by the Borrower shall have received not less than ten
days' prior written notice from the Borrower requesting such Available
Commitment increase. Each such Lender electing to participate in such
Available Commitment increase shall commit to an amount not less than
$5,000,000, but shall accept any allocation amount designated by the
Borrower and the Administrative Agent that is equal to or less than
its proposed portion of the Available Commitment increase; and
(g) Notwithstanding anything herein or in any other Loan
Paper to the contrary, (i) the Borrower is not obligated to notify
each Lender of, or to allocate to any existing Lender any portion of,
the proposed increase, and the Borrower and the Administrative Agent
may agree to add other creditors in connection with any such proposed
increase. Each existing Lender agrees and acknowledges that new
creditors may be allocated all or any portion of the proposed increase
upon the determination of the Borrower and the Administrative Agent;
and
(h) Each of the one proposed increase shall be in an
aggregate minimum amount of $10,000,000 and $5,000,000 multiples
thereof; and
(i) The Administrative Agent shall have received a
certificate from the Borrower to the effect that (i) such increase has
received all required regulatory approvals, if necessary, and is in
compliance with all applicable Laws, and (ii) no other approvals or
consents from any Person are required by any such Person except to the
extent they have been received; and
(j) Each new Lender (including any new Lenders party hereto)
shall have received a promissory Note, and the Borrower and each new
Lender agrees to execute any and all such documents deemed necessary
by the Administrative Agent in order to effectuate this Section 2.17
(whether UCC-1s, new documentation relating to any Collateral,
Guaranty or otherwise); and
(k) On the date of increase, the Administrative Agent shall
deliver to each Lender evidence of new Specified Percentages adjusted
to give effect to the increase in the Available Commitment; and
(l) On or prior to the date of increase, each new lender
being added to the credit facility shall deliver to the Borrower and
the Administrative Agent documentation acceptable to the
Administrative Agent evidencing such new Lender's acceptance of this
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Agreement and all the other Loan Papers in form and substance
reasonably acceptable to the Administrative Agent (and making such
lender a party to this Agreement and the other Loan Papers); and
(m) The Administrative Agent shall have received financial
projections in form and substance acceptable to the Lenders and
demonstrating compliance with the financial covenants set forth in
Section 7.01 hereof throughout the term of this Agreement; and
(n) The Available Commitment shall (i) never exceed the sum
of the Available Commitment plus the Unavailable Commitment, as each
is reduced in accordance with Section 2.04 hereof, this Section 2.17
and the other terms of this Agreement, and (ii) never increase except
to the extent, and not to exceed such amount, that the Unavailable
Commitment is in excess of zero; and
(o) The Unavailable Commitment shall be reduced in accordance
with this Section 2.17 dollar for dollar for each increase in the
Available Commitment; and
(p) The Administrative Agent on behalf of each Lender shall
have received all amendments to security agreements, deeds of trust
and mortgages as the Administrative Agent shall deem necessary to
maintain its valid and perfected Lien.
No Lender shall be obligated to increase the dollar amount of its
share of the Available Commitment without its written consent in its sole
discretion. In connection with any increase to the Available Commitment in
accordance with the terms of this Section 2.17, each existing Lender
(regardless of whether such Lender is participating in such increase) agrees to
execute any and all agreements requested by the Administrative Agent to
effectuate the intent of this Section 2.17. Notwithstanding anything contained
herein to the contrary, the limitations placed upon assignments set forth in
Section 10.04 hereof shall not apply to proposed increases pursuant to this
Section.
ARTICLE III. LETTERS OF CREDIT
3.01. Issuance of Letters of Credit. The Borrower shall give the
Administrative Agent not less than five Business Days prior written notice of a
request for the issuance of a Letter of Credit, and the Administrative Agent
shall promptly notify each Lender of such request. Upon receipt of the
Borrower's properly completed and duly executed Applications, and subject to
the terms of such Applications and to the terms of this Agreement, the
Administrative Agent agrees to issue Letters of Credit on behalf of the
Borrower in an aggregate face amount not in excess of the lesser of (a) Letter
of Credit Commitment and (b) the remainder of the Available Commitment minus
the sum of all outstanding Advances plus the aggregate face amount of all
outstanding Letters of Credit, including without limitation, the Bond Letter of
Credit. No Letter of Credit shall have a maturity extending beyond the earliest
of (i) the Conversion Date (or after the Conversion Date, the Maturity Date),
or (ii) one year from the date of its issuance, or (iii) such earlier date as
may be required to enable the Borrower to satisfy its repayment obligations
under Section 2.06 hereof. Subject to such
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maturity limitations and so long as no Default or Event of Default has occurred
and is continuing or would result from the renewal of a Letter of Credit, the
Letters of Credit may be renewed by the Administrative Agent in its discretion.
The Lenders shall participate ratably in any liability under the Letters of
Credit and in any unpaid reimbursement obligations of the Borrower with respect
to any Letter of Credit in their Specified Percentages. The amount of the
Letters of Credit (including, without limitation, the Bond Letter of Credit)
issued and outstanding and the unpaid reimbursement obligations of the Borrower
for such Letters of Credit shall reduce the amount of the Available Commitment
available, so that at no time shall the sum of (i) all outstanding Advances in
the aggregate, plus (ii) the aggregate face amount of all outstanding Letters
of Credit (including, without limitation, the Bond Letter of Credit), plus
(iii) (without duplication) all outstanding reimbursement obligations related
to Letters of Credit, exceed the Available Commitment, and at no time shall the
sum of all Advances by any Lender made plus its ratable share of amounts
available to be drawn under the Letters of Credit (including, without
limitation, the Bond Letter of Credit) and the unpaid reimbursement obligations
of the Borrower in respect of such Letters of Credit exceed its Specified
Percentage of the Available Commitment.
3.02. Letters of Credit Fee. In consideration for the issuance of each
Letter of Credit (including the Bond Letter of Credit), the Borrower shall pay
to (a) the Administrative Agent for its account and for the account of the
Issuing Bank, application and processing fees in the amount of the higher of
(i) $350.00 and (ii) the product of .125% multiplied by the face amount of such
Letter of Credit on each Letter of Credit, due and payable on the date of
issuance of each Letter of Credit (other than the issuance of the Bond Letter
of Credit by Bank Austria AG which has already been issued), and (b) the
Administrative Agent for the account of the Lenders in accordance with their
Specified Percentages or the Issuing Bank, as case may be, a per annum fee for
each Letter of Credit equal to the higher of (i) $350.00 and (ii) the product
of the Applicable Margin for a LIBOR Advance in effect on the date of
calculation multiplied by the face amount of each such Letter of Credit. Each
fee for each Letter of Credit under subsection (b) above shall be due and
payable to the Administrative Agent or the Issuing Bank, as the case may be,
quarterly as it accrues, on each Quarterly Date during the term of the Letter
of Credit and on the expiration or renewal of each such Letter of Credit,
beginning with the first such Quarterly Date after the issuance of each Letter
of Credit and ending on the expiration date of each such Letter of Credit.
3.03. Reimbursement Obligations.
(a) The Borrower hereby agrees to reimburse Administrative Agent and
the Issuing Bank immediately upon demand by Administrative Agent, and in
immediately available funds, for any payment or disbursement made by
Administrative Agent or the Issuing Bank under any Letter of Credit. Payment
shall be made by the Borrower with interest on the amount so paid or disbursed
by Administrative Agent or the Issuing Bank from and including the date payment
is made under any Letter of Credit to and including the date of payment, at the
lesser of (i) the Highest Lawful Rate, and (ii) the sum of the Base Rate in
effect from time to time plus 2% per annum; provided, however, that if the
Borrower would be permitted under the terms of Section 2.01, Section 2.02 and
Section 4.02 to borrow Advances in amounts at least equal to their
reimbursement obligation for a drawing under any Letter of Credit, a Base
Advance by each Lender in an amount equal to such
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Lender's Specified Percentage shall automatically be deemed made on the date of
any such payment or disbursement made by Administrative Agent or the Issuing
Bank in the amount of such obligation and subject to the terms of this
Agreement.
(b) The Borrower hereby also agrees to pay to Administrative Agent
immediately upon demand by Administrative Agent or the Issuing Bank and in
immediately available funds, as security for its reimbursement obligations in
respect of the Letters of Credit under Section 3.03(a) hereof and any other
amounts payable hereunder and under the Notes, an amount equal to the aggregate
amount available to be drawn under Letters of Credit then outstanding,
irrespective of whether the Letters of Credit have been drawn upon, upon an
Event of Default. Any such payments shall be deposited in a separate account
designated "World Access Special Account" or such other designation as
Administrative Agent shall elect. All such amounts deposited with
Administrative Agent shall be and shall remain funds of the Borrower on deposit
with Administrative Agent and may be invested by Administrative Agent as
Administrative Agent shall determine. Such amounts may not be used by
Administrative Agent or the Issuing Bank to pay the drawings under the Letters
of Credit; however, such amounts may be used by Administrative Agent and the
Issuing Bank as reimbursement for Letter of Credit drawings which
Administrative Agent or the Issuing Bank has paid. During the existence of an
Event of Default but after the expiration of any Letter of Credit that was not
drawn upon, the Borrower may direct Administrative Agent or the Issuing Bank to
use any cash collateral for any such expired Letter of Credit, if any, to
reduce the amount of the Obligations. Any amounts remaining in the World Access
Special Account after the date of the expiration of all Letters of Credit and
after all Obligations have been paid in full, shall be repaid to the Borrower
promptly after such expiration and such payment in full.
(c) The obligations of the Borrower under this Section 3.03 will
continue until all Letters of Credit have expired and all reimbursement
obligations with respect thereto have been paid in full by the Borrower and
until all other Obligations shall have been paid in full.
(d) The Borrower shall be obligated to reimburse Administrative Agent
and the Issuing Bank upon demand for all amounts paid under the Letters of
Credit as set forth in Section 3.03(a) hereof; provided, however, if the
Borrower for any reason fails to reimburse Administrative Agent or the Issuing
Bank in full upon demand, whether by failing to or not being permitted to
borrow Advances to pay such reimbursement obligations or otherwise, the Lenders
shall reimburse Administrative Agent and the Issuing Bank in accordance with
each Lender's Specified Percentage for amounts due and unpaid from the Borrower
as set forth in Section 3.04 hereof; provided, however, that no such
reimbursement made by the Lenders shall discharge the Borrower's obligations to
reimburse Administrative Agent or the Issuing Bank.
(e) The Borrower and the Parent shall indemnify and hold
Administrative Agent, the Issuing Bank, or any Lender, its officers, directors,
representatives and employees harmless from loss for any claim, demand or
liability which may be asserted against Administrative Agent, the Issuing Bank,
or such indemnified party in connection with actions taken under the Letters of
Credit or in connection therewith (INCLUDING LOSSES RESULTING FROM THE
NEGLIGENCE OF ADMINISTRATIVE AGENT OR SUCH INDEMNIFIED PARTY), and shall pay
Administrative Agent and the Issuing Bank for
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reasonable fees of attorneys (who may be employees of Administrative Agent and
the Issuing Bank) and legal costs paid or incurred by Administrative Agent and
the Issuing Bank in connection with any matter related to the Letters of
Credit, except for losses and liabilities incurred as a direct result of the
gross negligence or wilful misconduct of Administrative Agent, the Issuing
Bank, or such indemnified party. If the Borrower for any reason fails to
indemnify or pay Administrative Agent, the Issuing Bank or such indemnified
party of Administrative Agent as set forth herein in full, the Lenders shall
indemnify and pay Administrative Agent upon demand, in accordance with each
Lender's Specified Percentage of such amounts due and unpaid from the Borrower.
The provisions of this Section 3.03(e) shall survive the termination of this
Agreement.
3.04. Lenders' Obligations. Each Lender agrees, unconditionally and
irrevocably, to reimburse Administrative Agent or the Issuing Bank on demand
for such Lender's Specified Percentage of each draw paid by Administrative
Agent or the Issuing Bank under any Letter of Credit. All amounts payable by
any Lender under this subsection shall include interest thereon at the Federal
Funds Rate, from the date of the applicable draw to the date of reimbursement
by such Lender. No Lender shall be liable for the performance or nonperformance
of the obligations of any other Lender under this Section. The obligations of
the Lenders under this Section shall continue after the Maturity Date and shall
survive termination of any Loan Papers.
3.05. Administrative Agent's Obligations.
(a) Administrative Agent and the Issuing Bank each makes no
representation or warranty, and assumes no responsibility with respect to the
validity, legality, sufficiency or enforceability of any Application or any
document relative thereto or to the collectibility thereunder. Administrative
Agent and the Issuing Bank each assumes no responsibility for the financial
condition of the Borrower and its Subsidiaries or for the performance of any
obligation of the Borrower. Administrative Agent and the Issuing Bank each may
use its discretion with respect to exercising or refraining from exercising any
rights, or taking or refraining from taking any action which may be vested in
it or which it may be entitled to take or assert with respect to any Letter of
Credit or any Application.
(b) Administrative Agent and Issuing Bank each shall be under no
liability to any Lender with respect to anything Administrative Agent or
Issuing Bank may do or refrain from doing in the exercise of its judgment, the
sole liability and responsibility of Administrative Agent or Issuing Bank being
to handle each Lender's share on as favorable a basis as Administrative Agent
or Issuing Bank handles its own share and to promptly remit to each Lender its
share of any sums received by Administrative Agent under Article III or any
Application. Administrative Agent and Issuing Bank shall have no duties or
responsibilities except those expressly set forth herein, and those duties and
liabilities shall be subject to the limitations and qualifications set forth
herein.
(c) Neither Administrative Agent, Issuing Bank, nor any of its
directors, officers, or employees shall be liable for any action taken or
omitted (whether or not such action taken or omitted is expressly set forth
herein) under or in connection herewith or any other instrument or document in
connection herewith, except for gross negligence or willful misconduct, and no
Lender
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waives its right to institute legal action against Administrative Agent or
Issuing Bank for wrongful payment of any Letter of Credit due to Administrative
Agent's or Issuing Bank's gross negligence or willful misconduct.
Administrative Agent and Issuing Bank shall incur no liability to any Lender,
the Borrower or any Affiliate of the Borrower or Lender in acting upon any
notice, document, order, consent, certificate, warrant or other instrument
reasonably believed by Administrative Agent and Issuing Bank to be genuine or
authentic and to be signed by the proper party.
3.06 Reinstatement. The provisions of this Article III shall continue
to be effective, or be reinstated, as the case may be, if at any time payment,
or any part thereof, of any of the reimbursement obligations in respect of
Letters of Credit is rescinded or must otherwise be restored or returned by the
Administrative Agent or the Issuing Bank upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower or any other
Obligor, or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or custodian, trustee or similar officer for, the Borrower or
any other Obligor or any part of its property, or otherwise, all as though such
payments had not been made.
3.07 Survivability of Provisions. The Borrower agrees to replace the
Bond Letter of Credit with a Letter of Credit issued by the Administrative
Agent by no later than September 30, 1999. The Borrower agrees to replace all
other Letters of Credit issued by the Issuing Bank with a Letter of Credit
issued by the Administrative Agent by no later than January 15, 1999.
Notwithstanding the replacement of, or change in the identity of, the Issuing
Bank hereunder, the provisions of this Agreement relating to the Issuing Bank
shall continue to inure to the benefit of any prior Issuing Bank as to any
actions taken or omitted to be taken by such prior Issuing Bank while it was
Issuing Bank hereunder.
ARTICLE IV. CONDITIONS PRECEDENT
4.01. Conditions Precedent to the Initial Advance. The obligations of
each Lender under this Agreement and the obligation of each Lender to make the
Initial Advance shall be subject to the following conditions precedent. On the
Closing Date:
(a) All terms, conditions and documentation in connection with this
Agreement shall be acceptable to the Lenders.
(b) The making of the Available Commitment shall not contravene any
Law applicable to Administrative Agent or any Lender.
(c) Each Lender shall have received a Certificate from an Authorized
Officer stating that no Material Adverse Change, as determined by the Lenders,
shall have occurred and be continuing in the business, assets, prospects or
financial condition of the businesses of the Borrower, the Parent and the
Restricted Subsidiaries since September 30, 1998.
(d) All proceedings of the Borrower, the Parent and the Restricted
Subsidiaries taken in connection with the transactions contemplated hereby, and
all documents incidental thereto,
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shall be reasonably satisfactory in form and substance to the Lenders. Each
Lender shall have received copies of all documents or other evidence that it
may reasonably request in connection with such transactions.
(e) Each Lender shall have received an executed copy of this
Agreement, and all documents required to be delivered pursuant thereto, as well
as its respective Notes, duly completed and correct. The Lenders shall have
received copies of the Fee Letters signed by the Borrower, as applicable. Each
of the following shall have been delivered to Administrative Agent on behalf of
Lenders, in form and substance satisfactory to Administrative Agent, Special
Counsel and each Lender to the extent required by Administrative Agent: Each
other Loan Paper requested by Administrative Agent, including, without
limitation, all guarantees, pledge agreements, security agreements, mortgages,
deeds of trust, collateral assignments and other agreements granting any
interest in any Collateral.
(f) The Borrower shall have delivered to each Lender a Certificate,
dated as of the Closing Date, executed by an Authorized Officer on behalf of
the Parent, the Borrower and its Restricted Subsidiaries, certifying that (i)
no Default or Event of Default has occurred and is continuing, (ii) the
representations and warranties set forth in Article V hereof are true and
correct, (iii) each of the Parent, the Borrower and its Restricted Subsidiaries
has complied with all agreements and conditions to be complied with by it under
the Loan Papers by such date, (iv) that the attached resolutions for each of
the Parent, the Borrower and its Restricted Subsidiaries are the true, accurate
and complete resolutions authorizing the corporate restructuring, the
incurrence and performance of the Facility and the Loan Papers, (v) that the
attached copies of certified articles of incorporation, or other articles of
organization, certificates of good standing, certificates of existence and
incumbency certificates for each of the Parent, the Borrower and its Restricted
Subsidiaries are (A) not more than 30 days old and certified by the appropriate
secretary of state or other governmental organization and (B) represent the
true and accurate certificate for each such entity, and (vi) the attached
copies of by-laws or other organizational documents represent the true and
accurate by-laws or other organizational documents for each of the Parent, the
Borrower and its Restricted Subsidiaries in effect on the Closing Date.
(g) Each Lender shall have received opinions of Rogers & Hardin LLP,
corporate counsel to the Parent, the Borrower and the Restricted Subsidiaries,
dated as of the Closing Date, acceptable to the Lenders and otherwise in form
and substance satisfactory to the Lenders and Special Counsel. Each Lender
shall have received opinions with respect to the grant of Liens on 65% of the
Capital Stock in Unrestricted Subsidiaries by no later than January 31, 1999.
(h) Each Lender shall have evidence satisfactory that the Borrower,
the Parent and each of their Subsidiaries has reasonably anticipated that all
computer applications that are material to their respective businesses and
operations will on a timely basis be able to perform properly date- sensitive
functions and will make an inquiry of each of their key suppliers, vendors and
customers as to whether such Persons will on a timely basis be Year 2000
Compliant in all material respects and, on the basis of that inquiry, believe
that all such Persons will be so compliant;
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(i) Each Lender shall have received an opinion of FCC counsel to the
Borrower, dated as of the Closing Date, acceptable to the Lenders and otherwise
in form and substance satisfactory to the Lenders and Special Counsel, with
respect to certain FCC matters, and final approval, if necessary, shall have
been received from the FCC regarding any transfer of any FCC license.
(j) All proceedings of the Parent, the Borrower and the Subsidiaries
of the Parent and the Borrower taken in connection with the transactions
contemplated hereby, and all documents incidental thereto, shall be
satisfactory in form and substance to each Lender. The Administrative Agent and
each Lender shall have received copies of all documents or other evidence that
it may reasonably request in connection with such transactions. No Material
Adverse Change, as determined by the Lenders, shall have occurred and be
continuing in the financial markets. The Borrower shall have paid all fees,
costs and expenses incurred by the Lenders in connection with the closing of
the Facility.
4.02. Conditions Precedent to All Advances. The obligation of each
Lender to make each Advance, except for Refinancing Advances, which constitutes
an increase, shall be subject to the further conditions precedent that (a) on
the date of such Advance, the following statements shall be true:
(i) The representations and warranties contained in Article V
hereof are true and correct on such date, as though made on and as of
such date (and the delivery of each Borrowing Notice under Section
2.02(a), and each Conversion or Continuation Notice under Section
2.09(b), or the failure to deliver a Conversion or Continuation Notice
under Section 2.09(b), shall constitute a representation that on the
disbursement date such representations are true (except as to
representations and warranties which (i) refer to a specific date,
(ii) have been modified by transactions permitted pursuant to this
Agreement or any other Loan Paper or (iii) have been specifically
waived in writing by Administrative Agent));
(ii) No event has occurred and is continuing, or would result
from such Advance (including the intended application of the proceeds
of such Advance), that does or could constitute a Default or Event of
Default;
(iii) There shall have occurred no Material Adverse Change,
and the making of such Advance shall not cause or result in a Material
Adverse Change; and
(iv) After giving effect to each such Advance, prior to the
Conversion Date, the aggregate amount of all outstanding Advances does
not exceed the Available Commitment;
and (b) Administrative Agent shall have received, in form and substance
acceptable to it, such other approvals, documents, certificates, opinions and
information as it may deem necessary or appropriate.
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ARTICLE V. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that the following are true and
correct:
5.01. Organization and Qualification. Each of the Borrower, the Parent
and their Restricted Subsidiaries is a corporation or partnership duly
organized, validly existing and in good standing under the Laws of the
jurisdiction of its incorporation or formation, as applicable. Each such Person
is qualified to do business in all jurisdictions where the nature of its
business or Properties require such qualification, except to the extent that
any failure to be so qualified could not, in the aggregate, reasonably be
expected to cause a Material Adverse Change. Set forth on Schedule 5.01
attached hereto is a complete and accurate listing with respect to the Borrower
and each of the Parent and their Restricted Subsidiaries, showing (a) the
jurisdiction of its organization and its mailing address, which is the
principal place of business and executive offices of each unless otherwise
indicated, (b) the classes of Capital Stock and shares of Capital Stock issued
and outstanding in each of the Parent, the Borrower and the Restricted
Subsidiaries and the numbers or amounts of each of the Parent's, the Borrower's
and the Restricted Subsidiaries' Capital Stock authorized and outstanding, (c)
other than with respect to the Parent, the Borrower and the Restricted
Subsidiaries, each record and beneficial owner of outstanding Capital Stock on
the date hereof, indicating the ownership percentage, and (d) all outstanding
options, rights, rights of conversion or purchase, repurchase, rights of first
refusal and similar rights relating to the Capital Stock of each of the Parent,
the Borrower and the Restricted Subsidiaries. Except as set forth on Schedule
5.01 hereto, neither the Borrower, the Parent nor any Restricted Subsidiary has
agreed to grant or issue any options, warrants or similar rights to any Person
to acquire any Capital Stock of the Borrower or any Restricted Subsidiary. All
Capital Stock is validly issued and fully paid. The Borrower has no knowledge
of any share of Capital Stock of it, the Parent or any Restricted Subsidiaries
being subject to any Lien, including any restrictions on hypothecation or
transfer, except Liens described on Schedule 5.08 hereto.
5.02. Due Authorization; Validity. The board of directors of the
Borrower, the Parent and each of their Restricted Subsidiaries, or of their
partners, as applicable, have duly authorized the execution, delivery, and
performance of the Loan Papers to be executed by the Borrower and each of the
Parent or their Restricted Subsidiaries, as appropriate. Each of the Borrower,
the Parent and their Restricted Subsidiaries has full legal right, power and
authority to execute, deliver and perform under the Loan Papers to be executed
and delivered by it. The Loan Papers constitute the legal, valid and binding
obligations of the Borrower, the Parent and their Restricted Subsidiaries, as
appropriate, enforceable in accordance with their terms (subject as to
enforcement of remedies to any applicable Debtor Relief Laws).
5.03. Conflicting Agreements and Other Matters. The execution or
delivery of any Loan Papers, and performance thereunder, does not conflict
with, result in a breach of the terms, conditions or provisions of, or
constitute a default under, result in any violation of or result in the
creation of any Lien (other than in favor of Administrative Agent) upon any
Properties of the Borrower, the Parent or their Restricted Subsidiaries under,
or require any consent, approval or other action by, notice to or filing with,
any Tribunal or Person pursuant to any organizational
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document, by-laws award of any arbitrator, or any agreement, instrument or Law
to which the Borrower, the Parent or any of their Restricted Subsidiaries or
any of their Properties is subject except as set forth on Schedule 5.03 hereto.
5.04. Financial Statements. The audited financial statements of the
Parent, the Borrower and the Restricted Subsidiaries dated December 31, 1997
and previously delivered to Administrative Agent, fairly present its financial
position and the results of operations as of the dates and for the periods
shown, all in accordance with GAAP. Such financial statements reflect all
material liabilities, direct and contingent, of the Parent, the Borrower and
their Restricted Subsidiaries that are required to be disclosed in accordance
with GAAP. As of the date of such financial statements, there were no
Contingent Liabilities, liabilities for Taxes, forward or long-term
commitments, or unrealized or anticipated losses from any unfavorable
commitments that are material in amount and that are not reflected on such
financial statements or otherwise disclosed in writing to Administrative Agent.
Since September 30, 1998, there has been no Material Adverse Change. The
Borrower, the Parent and each of the Restricted Subsidiaries is Solvent. The
projections of the Borrower, the Parent, and the Restricted Subsidiaries dated
October 16, 1998, previously delivered to Administrative Agent, were prepared
in good faith, and management believes them to be based on reasonable
assumptions (each of which is stated in such statement) and to provide
reasonable estimations of future performance as of the dates and for the
periods shown for the Parent, the Borrower and their Restricted Subsidiaries,
subject to the uncertainty and approximation inherent in any projections. The
Borrower's fiscal year ends on December 31.
5.05. Litigation. Shown on Schedule 5.05 is all Litigation that is
pending and, to the Borrower's best knowledge, threatened against the Borrower,
the Parent and their Restricted Subsidiaries, and any of their Properties or
assets on the date hereof. There is no pending or, to the Borrower's best
knowledge, threatened Litigation against the Borrower, the Parent or their
Restricted Subsidiaries, any of their Properties that could reasonably be
expected to cause a Material Adverse Change.
5.06. Compliance With Laws Regulating the Incurrence of Debt. No
proceeds of any Advance will be used directly or indirectly to acquire any
security in any transaction which is subject to Sections 13 and 14 of the
Exchange Act. The Borrower is not, nor is any of the Parent or their Restricted
Subsidiaries, engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the Board of Governors of the Federal Reserve System), and no proceeds of
any Advance will be used to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or carrying any margin stock.
Following the Borrower's intended use of the proceeds of each Advance, not more
than 25% of the
value of the assets of the Borrower will be "margin stock", within the meaning
of Regulation U. The Borrower is not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Investment
Company Act of 1940, the Interstate Commerce Act (as any of the preceding acts
have been amended), or any other Law that the incurring of Debt by the Borrower
would violate in any material respect, including, without limitation, Laws
relating to common or contract carriers or the sale of
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electricity, gas, steam, water, or other public utility services. None of the
Borrower and its Restricted Subsidiaries, nor any agent acting on their behalf,
has taken or will knowingly take any action which might cause this Agreement or
any Loan Papers to violate any regulation of the Board of Governors of the
Federal Reserve System or to violate the Exchange Act, in each case as in
effect now or as the same may hereafter be in effect.
5.07. Licenses, Title to Properties, and Related Matters. Except as
listed on Schedule 5.07 hereto, the Borrower and each of the Parent and their
Restricted Subsidiaries possess all material Authorizations necessary and
appropriate to own, operate and conduct their business or otherwise for the
operation of their businesses and are not in violation thereof in any material
respect. All Authorizations are in full force and effect, and no event has
occurred that permits, or after notice or lapse of time could permit, the
revocation, termination or material and adverse modification of any such
Authorization, except those which in the aggregate could not reasonably be
expected to cause a Material Adverse Change. Schedule 5.07 shows the expiration
date and/or termination date for each Authorization (including, without
limitation, FCC Licenses) in effect on the Closing Date. The Borrower is not,
nor is any Subsidiary of the Borrower or the Parent, in violation of any
material duty or obligation required by the Communications Act of 1934, as
amended, or any FCC rule or regulation applicable to the operation of any
portion of any of its business. There is not pending or, to the best knowledge
of the Borrower, threatened, any action by the FCC to revoke, cancel, suspend
or refuse to renew any FCC License relating to any of the Borrower's, the
Parent's, or the Restricted Subsidiaries' business. There is not pending or, or
to the best knowledge of the Borrower, threatened, any action by the FCC to
modify adversely, revoke, cancel, suspend or refuse to renew any other
Authorization relating to such business. There is not issued or outstanding or,
to the best knowledge of the Borrower, threatened, any notice of any hearing,
violation or material complaint against the Borrower, the Parent or any of the
Restricted Subsidiaries with respect to the operation of any portion of such
businesses, and the Borrower has no knowledge that any Person intends to
contest renewal of any Authorization relating to such business. Each of the
Borrower, the Parent and their Restricted Subsidiaries has requisite corporate
or partnership power (as applicable) and legal right to own and operate its
Property and to conduct its business. Each has good and indefeasible title (fee
or leasehold, as applicable) to its Property, subject to no Lien of any kind,
except Permitted Liens. All of the assets of the Borrower, the Parent and each
of their Restricted Subsidiaries are located within the municipalities and
borough locations described on Schedule 5.07. Neither the Borrower, nor the
Parent nor their Restricted Subsidiaries is in violation of its respective
articles of organization or incorporation (as applicable) or bylaws. Neither
the Borrower, nor the Parent nor their Restricted Subsidiaries is in violation
of any Law, or material agreement or instrument binding on or affecting it or
any of its Properties, the effect of which could reasonably be expected to
cause a Material Adverse Change. No business or Properties of the Parent, the
Borrower or any Restricted Subsidiary is affected by any strike, lock-out or
other labor dispute. No business or Properties of the Parent, the Borrower or
any Restricted Subsidiary is affected by any drought, storm, earthquake,
embargo, act of God or public enemy or other casualty, the effect of which
could reasonably be expected to cause a Material Adverse Change.
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5.08. Outstanding Debt and Liens. The Borrower, the Parent and their
Restricted Subsidiaries have no outstanding Debt, Contingent Liabilities or
Liens, except Permitted Liens, except as shown on Schedule 5.08 hereto. No
breach, default or event of default exists under any document, instrument or
agreement evidencing or otherwise relating to any Funded Debt of any of the
Borrower, the Parent or their Restricted Subsidiaries.
5.09. ERISA. Each Plan of the Parent, the Borrower and each Restricted
Subsidiary of the Parent and the Borrower has satisfied the minimum funding
standards under all Laws applicable thereto, and no Plan has an accumulated
funding deficiency thereunder. The Borrower has not, and neither has the Parent
nor any Restricted Subsidiary of the Borrower or the Parent, incurred any
material liability to the PBGC with respect to any Plan. No ERISA Event has
occurred with respect to any Plan for which an Insufficiency in excess of
$100,000 exists on the date of such occurrence. None of the Parent, the
Borrower, nor any Restricted Subsidiary of the Parent or the Borrower has
participated in any non-exempt Prohibited Transaction with respect to any Plan
or trust created thereunder. None of the Borrower, the Parent or any Restricted
Subsidiary of the Parent or the Borrower, nor any ERISA Affiliate has incurred
any Withdrawal Liability to any Multiemployer Plan that has not been satisfied.
None of the Borrower, the Parent or any Restricted Subsidiary of the Parent or
the Borrower, nor any ERISA Affiliate has been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization or has
been terminated, within the meaning of Title IV of ERISA.
5.10. Environmental Laws. The Borrower, the Parent and each of their
Restricted Subsidiaries have obtained all material environmental, health and
safety permits, licenses and other material authorizations required under all
Applicable Environmental Laws to carry on their respective businesses as being
conducted. On the Closing Date, there are no environmental liabilities of the
Borrower, the Parent or any other of their Restricted Subsidiaries (with
respect to any fee owned or leased Properties), except as disclosed and
described in detail on Schedule 5.11 hereto. Each of such permits, licenses and
authorizations is in full force and effect, and the Borrower and each
Restricted Subsidiary is in compliance with the terms and conditions thereof
and is also in compliance with all other limitations, restrictions, conditions,
standards, prohibitions, requirements, obligations, schedules and timetables
contained in any applicable Environmental Law or in any regulation, code, plan,
order, decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply with
any thereof could not reasonably be expected to cause a Material Adverse
Change. In addition, no written notice, notification, demand, request for
information, citation, summons or order has been issued, no written complaint
has been filed, no penalty has been assessed and no investigation or review is
pending or, to the best knowledge of the Borrower or any Restricted Subsidiary,
threatened, by any Tribunal or other entity with respect to any alleged failure
by the Borrower or any Restricted Subsidiary to have any environmental, health
or safety permit, license or other authorization required under any Applicable
Environmental Law in connection with the conduct of the business of the
Borrower or any Restricted Subsidiary or with respect to any generation,
treatment, storage, recycling, transportation, discharge, disposal or release
of any Hazardous Materials by the Borrower or any Restricted Subsidiary. To the
best knowledge of the Borrower and each Restricted Subsidiary, there are no
material environmental liabilities of the Borrower or any Restricted
Subsidiary, except as previously disclosed in writing to the Lenders. To the
best knowledge of the Borrower and each Restricted Subsidiary, there are no
environmental
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liabilities of the Borrower or any Restricted Subsidiary which could reasonably
be expected to cause a Material Adverse Change. The Borrower has delivered to
Administrative Agent copies of all environmental studies and reports conducted
or received by the Borrower or any Restricted Subsidiary in connection with
real Property. Such studies cover all real Property, if any, owned in fee by
the Borrower and each Restricted Subsidiary. No Hazardous Materials are
generated or produced at or in connection with the Properties and operations of
the Borrower or any Restricted Subsidiary, nor have any Hazardous Materials
been disposed of or otherwise released on or to any Property on which any
operations of the Borrower or any Restricted Subsidiaries are conducted, except
in compliance with Applicable Environmental Laws.
5.11. Disclosure. Neither the Borrower, nor the Parent, nor any
Restricted Subsidiary has made a material misstatement of fact or failed to
disclose any material fact necessary to make the facts disclosed not misleading
in light of the circumstances under which they were made, to Administrative
Agent or any Lender during the course of application for and negotiation of any
Loan Papers or otherwise in connection with any Advances. There is no fact
known to the Borrower, the Parent or any other Restricted Subsidiary that
materially adversely affects any of the Borrower's, the Parent's or any
Restricted Subsidiary's Properties or business, or that could constitute a
Material Adverse Change, and that has not been set forth in the Loan Papers or
in other documents furnished to Administrative Agent or to any Lender.
5.12. Investments; Restricted Subsidiaries. The Parent, the Borrower
and the Restricted Subsidiaries have no Investments except as described on
Schedule 5.12 hereto and as permitted by Section 7.10 hereof. Schedule 5.12 is
a complete and accurate listing with respect to each of the Parent, the
Borrower and the Restricted Subsidiaries showing (a) its complete name, (b) its
jurisdiction of organization, (c) its capital structure, (d) its street and
mailing address, which is its principal place of business and executive office,
and (e) all interests in the Parent, the Borrower and the Restricted
Subsidiaries.
5.13. Certain Fees. No broker's, finder's, management fee or other fee
or commission will be payable by the Borrower with respect to the making of the
Available Commitment or Advances hereunder other than fees payable hereunder.
The Borrower, the Parent and each Restricted Subsidiary hereby agree to
indemnify and hold harmless Administrative Agent and each Lender from and
against any claims, demand, liability, proceedings, costs or expenses asserted
with respect to or arising in connection with any such fees or commissions.
5.14. Intellectual Property. The Borrower, the Parent and each
Restricted Subsidiary have obtained all patents, trademarks, service-marks,
trade names, copyrights, licenses and other rights, free from material
restrictions, which are necessary for the operation of their respective
businesses as presently conducted and as proposed to be conducted. Nothing has
come to the attention of the Borrower, the Parent or any Restricted Subsidiary
to the effect that (a) any process, method, part or other material presently
contemplated to be employed by the Borrower, the Parent or any other Restricted
Subsidiary may or could reasonably be alleged to infringe any
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patent, trademark, service- mark, trade name, license or other right (except
copyright) owned by any other Person, or (b) except as shown on Schedule 5.05
attached hereto, there is not pending or threatened any claim or litigation
against or affecting the Borrower, the Parent or any other Restricted
Subsidiary contesting its right to sell or use any such process, method, part
or other material. Nothing has come to the attention of the Borrower, the
Parent or any Restricted Subsidiary to the effect that any material presently
contemplated to be employed by the Borrower, the Parent or any Restricted
Subsidiary may or could reasonably be alleged to infringe any copyright owned
by any other Person, except to the extent that any such infringement, when
aggregated with all other copyright infringements, could not reasonably be
expected to cause a Material Adverse Change.
5.15. Year 2000 Compliance.
(a) Any reprogramming required to permit the proper functioning, in
and following the year 2000, of (i) the computer systems used by the Borrower,
the Parent and their Subsidiaries and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which
any of such systems interface) and the testing of all such material systems and
equipment, as so reprogrammed, will be completed by September 30, 1999. The
cost to the Borrower, the Parent and the Restricted Subsidiaries of such
reprogramming and testing and of the reasonably foreseeable consequences of
year 2000 to the Borrower, the Parent and the Restricted Subsidiaries
(including, without limitation, reprogramming errors and the failure of others'
systems or equipment) will not result in a Default or Event of Default or cause
a Material Adverse Change. Except for such of the reprogramming referred to in
the immediately preceding sentence as may be necessary, the computer and
management information systems of the Borrower, the Parent and their
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the
Borrower, the Parent and their respective Subsidiaries to conduct their
respective businesses without causing a Material Adverse Change.
(b) Each of the Borrower, the Parent and their Subsidiaries is in the
process of making inquiry of each of its key suppliers, vendors and customers
as to whether such Person will on a timely basis be Year 2000 Compliant in all
material respects. "Key suppliers, vendors and customers" refers to those
suppliers, vendors and customers of the Borrower, the Parent and their
Subsidiaries, the business failure of which could result in a Material Adverse
Change.
5.16. Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made at and as of the Closing Date and at and as of the date of each Advance,
except for Refinancing Advances, and each shall be true and correct when made,
except to the extent (a) previously fulfilled in accordance with the terms
hereof, (b) subsequently inapplicable, or (c) previously waived in writing by
Administrative Agent and Lenders with respect to any particular factual
circumstance. The representations and warranties made under this Agreement
shall be deemed applicable to each Restricted Subsidiary as of the formation or
acquisition of such Restricted Subsidiary and at and as of each date the
representations and warranties are remade pursuant to this provision. All
representations and warranties made under this Agreement shall survive, and not
be waived by, the execution hereof
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by Administrative Agent and Lenders, any investigation or inquiry by
Administrative Agent or any Lender, or by the making of any Advance under this
Agreement.
ARTICLE VI. AFFIRMATIVE COVENANTS
So long as the Available Commitment, any Advance or any portion of the
Obligations is outstanding, or the Borrower, the Parent or any other Restricted
Subsidiary owes any other amount hereunder or under any other Loan Paper:
6.01. Compliance with Laws and Payment of Debt. The Borrower shall,
and shall cause the Parent and all Restricted Subsidiaries to, comply in all
material respects with all Applicable Laws, including, without limitation,
compliance with ERISA and all applicable federal and state securities Laws. The
Borrower shall, and shall cause the Parent and all Restricted Subsidiaries to,
pay its (a) Funded Debt as and when due (or within any applicable grace
period), unless payment thereof is being contested in good faith by appropriate
proceedings and adequate reserves have been established therefor, and (b) trade
debt in accordance with its past practices, and in any event before any trade
creditor takes any action or terminates any relationship, except those disputes
diligently contested in good faith by the Borrower, the Parent and their
Restricted Subsidiaries for which appropriate reserves have been established in
accordance with GAAP.
6.02. Insurance. The Borrower shall, and shall cause the Parent and
each Restricted Subsidiaries to, (a) keep its offices and other insurable
Properties adequately insured at all times by reputable insurers to such extent
and against such risks, including fire and other risks insured against by
extended coverage, as is customary with companies similarly situated and in the
same or similar businesses, (b) maintain in full force and effect public
liability (including liability insurance for all vehicles and other insurable
Property) and workers' compensation insurance, in amounts customary for such
similar companies to cover normal risks, by insurers satisfactory to
Administrative Agent, (c) maintain business interruption insurance for such
business in amounts satisfactory to the Lenders, and (d) maintain other
insurance as may be required by Law or reasonably requested by Administrative
Agent, provided that such insurance policies will show Administrative Agent, on
behalf of the Lenders, as additional insured or loss payee, as appropriate. The
Borrower shall deliver evidence of renewal of each insurance policy on or
before the date of its expiration, and from time to time shall deliver to
Administrative Agent, upon demand, evidence of the maintenance of such
insurance.
6.03. Inspection Rights. The Borrower shall, and shall cause the
Parent and each Restricted Subsidiary to, permit Administrative Agent or any
Lender, upon one day's notice or such lesser notice as is reasonable under the
circumstances, to examine and make copies of and abstracts from their records
and books of account, to visit and inspect their Properties and to discuss
their affairs, finances, and accounts with any of their directors, officers,
employees, accountants, attorneys and other representatives, all as
Administrative Agent or any Lender may reasonably request.
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6.04. Records and Books of Account; Changes in GAAP. The Borrower
shall, and shall cause the Parent and each Subsidiary of the Parent and the
Borrower to, keep adequate records and books of account in conformity with
GAAP. The Borrower shall not, nor shall the Borrower permit the Parent or any
Restricted Subsidiary of the Borrower or the Parent to change its fiscal year
or its method of financial accounting except in accordance with GAAP. In
connection with any such change after the date hereof, the Borrower and Lenders
shall negotiate in good faith to make appropriate alterations to the covenants
set forth in Section 7.01 hereof, reflecting such change.
6.05. Reporting Requirements. The Borrower shall furnish to the
Administrative Agent:
(a) As soon as available and in any event within 75 days after the end
of the Borrower's fiscal quarters, (i) consolidated balance sheets of Parent,
the Borrower, and the Restricted Subsidiaries and consolidating balance sheets
of the Borrower and its Subsidiaries, as of the end of such quarter, and
consolidated statements of income and statements of cash flows of the Parent,
the Borrower, and each of the Restricted Subsidiaries and consolidating
statements of income and statements of cash flows of the Parent, the Borrower
and the Restricted Subsidiaries, for the portion of the fiscal year ending with
such quarter, setting forth, in comparative form, figures for the corresponding
periods in the previous fiscal year, all in reasonable detail, and certified by
an Authorized Officer as prepared in accordance with GAAP, and fairly
presenting the financial position and results of operations of the Parent, the
Borrower and the Restricted Subsidiaries, subject to normal year-end
adjustments, (ii) for the Parent, the Borrower and the Restricted Subsidiaries,
comparisons and reconciliations of actual results to the budget delivered
pursuant to Section 6.05(e) below for the fiscal quarter most recently ended,
in reasonable detail and satisfactory to the Administrative Agent, and (iii)
for the Parent, the Borrower and the Restricted Subsidiaries, all information
set forth in (i) and (ii) above in a separate presentation;
(b) As soon as available, and in any event within 120 days after the
end of each fiscal year, (i) consolidated balance sheets of the Parent, the
Borrower and the Restricted Subsidiaries, and consolidating balance sheets of
the Parent, the Borrower and the Restricted Subsidiaries, as of the end of such
fiscal year, and consolidated statements of income and cash flows of the
Parent, the Borrower and the Restricted Subsidiaries, and consolidating
statements of income and cash flows of the Parent, the Borrower and the
Restricted Subsidiaries, for such fiscal year, all in reasonable detail,
prepared in accordance with GAAP, and accompanied by an unqualified opinion of
the Auditor, which opinion shall state that such financial statements were
prepared in accordance with GAAP, that the examination by the Auditor in
connection with such financial statements was made in accordance with generally
accepted auditing standards, and that such financial statements present fairly
the financial position and results of operations of the Parent, the Borrower
and the Restricted Subsidiaries, and (ii) for the Parent, the Borrower and the
Restricted Subsidiaries, all information set forth in (i) above in a separate
presentation;
(c) Promptly upon receipt thereof, (i) copies of all material reports
or letters submitted to the Borrower, the Parent or any Subsidiary of the
Borrower or the Parent by the Auditor or
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any other accountants in connection with any annual, interim, or special audit,
including without limitation, the comment letter submitted to management in
connection with any such audit, (ii) each financial statement, report, notice
or proxy statement sent by the Parent, the Borrower or any Restricted
Subsidiary in writing to stockholders generally, (iii) each regular or periodic
report and any registration statement or prospectus (or material written
communication in respect of any thereof) filed by the Parent, the Borrower or
any Restricted Subsidiary with any securities exchange, with the Securities and
Exchange Commission or any successor agency, and (iv) all press releases
concerning material financial aspects of the Parent, the Borrower or any
Restricted Subsidiary;
(d) Together with each set of financial statements delivered pursuant
to subsections (a) and (b) above, a Compliance Certificate executed by an
Authorized Officer, (i) certifying that there has occurred no Default or Event
of Event of Default, (ii) computing the Applicable Margin, and (iii) setting
forth the detailed calculations with respect to the financial covenants
required by Section 7.01 hereof;
(e) As soon as available, and in any event not later than 45 days
after the beginning of each fiscal year of the Borrower, the annual operating
and Capital Expenditure budgets of the Borrower and the Restricted Subsidiaries
for such fiscal year;
(f) Promptly upon knowledge by the Borrower, the Parent or any
Restricted Subsidiary of the occurrence of any Default or Event of Default, a
notice from an Authorized Officer, setting forth the details of such Default or
Event of Default and the action being taken or proposed to be taken with
respect thereto;
(g) As soon as possible, and in any event within five Business Days
after knowledge thereof by the Borrower, the Parent or any Restricted
Subsidiary, notice of any Litigation pending or threatened against the
Borrower, the Parent or any Restricted Subsidiary which, if determined
adversely, could reasonably be expected to result in a judgment, penalties or
damages in excess of $5,000,000, together with a statement of an Authorized
Officer describing the allegations of such Litigation and the action being
taken or proposed to be taken with respect thereto;
(h) Promptly following notice or knowledge thereof by the Borrower,
the Parent or any other Restricted Subsidiaries, notice of any actual or
threatened loss or termination of any material Authorization of the Borrower,
the Parent or any Restricted Subsidiary, together with a statement of an
Authorized Officer describing the circumstances surrounding the same and the
action being taken or proposed to be taken with respect thereto;
(i) Promptly after filing or receipt thereof, copies of all reports
and notices that the Parent, the Borrower or any Restricted Subsidiary (i)
files or receives in respect of any Plan with or from the Internal Revenue
Service, the PBGC or the United States Department of Labor, or (ii) furnishes
to or receives from any holders of any Debt or Contingent Liability, if in
either case, any information or dispute referred to therein either causes a
Default or Event of Default or could reasonably be expected to cause or result
in a Default or an Event of Default;
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(j) Within 30 days after renewal or issuance of any hazard, public
liability, business interruption or other insurance policy maintained by the
Borrower, the Parent or any Restricted Subsidiary, a copy of the binder or
insurance certificate (showing Administrative Agent, on behalf of the Borrower,
the Parent or any Restricted Subsidiary, as loss payee or additional insured,
as appropriate);
(k) As soon as possible and in any event within 10 days after the
Borrower, the Parent or any Restricted Subsidiary knows that any Reportable
Event has occurred with respect to any Plan, a statement, signed by an
Authorized Officer, describing said Reportable Event and the action which the
such Person proposes to take with respect thereto;
(l) As soon as possible, and in any event within 10 days after receipt
by the Borrower, the Parent or any Restricted Subsidiary thereof, a copy of (a)
any notice or claim to the effect that the Borrower, the Parent or any
Restricted Subsidiary is or may be liable to any Person as a result of the
release by the Borrower, the Parent, any Restricted Subsidiary or any other
Person of any toxic or hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal, state or local
environmental, health or safety law or regulation by the Borrower, the Parent
or any Restricted Subsidiary, which, in either case, could reasonably be
expected to cause a Material Adverse Change;
(m) Promptly upon the filing thereof, copies of all material
registration statements and all annual, quarterly, monthly or other regular
reports which the Parent, the Borrower or any Restricted Subsidiary files with
the FCC or the Securities and Exchange Commission; and
(n) Promptly upon request, such other information concerning the
condition or operations of the Borrower, the Parent and any of the Restricted
Subsidiaries and any of their Affiliates, financial or otherwise, as
Administrative Agent or any Lender may from time to time reasonably request.
6.06. Use of Proceeds. The proceeds of the Advances shall be available
(and the Borrower shall use such proceeds) for (a) refinance existing Funded
Debt of the Borrower and its Restricted Subsidiaries, (b) Permitted
Acquisitions, (c) Capital Expenditures of the Borrower and the Restricted
Subsidiaries permitted by the terms of this Agreement, and (d) use for general
working capital purposes.
6.07. Maintenance of Existence and Assets. The Borrower shall
maintain, and shall cause the Parent and each Restricted Subsidiary to
maintain, its corporate existence, authority to do business in the
jurisdictions in which it is necessary for the Borrower, the Parent or each
Restricted Subsidiary to do so, and all Authorizations necessary for the
operation of any of their businesses. The Borrower shall maintain, and shall
cause the Parent and each other Restricted Subsidiary to maintain, the assets
necessary for use in their respective businesses in good repair, working order
and condition (normal wear and tear excepted), and make all such repairs,
renewals and replacements thereof as may be reasonably required.
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6.08. Payment of Taxes. The Borrower will, and will cause the Parent
and all Subsidiaries of the Parent and the Borrower to, promptly pay and
discharge all lawful Taxes imposed upon it or upon its income or profit or upon
any Property belonging to it, unless such Tax shall not at the time be due and
payable, or if the validity thereof shall currently be contested on a timely
basis in good faith by appropriate proceedings (provided that the enforcement
of any Liens arising out of any such nonpayment shall be stayed or bonded
during the proceedings) and adequate reserves with respect to such Tax shall
have been established in accordance with GAAP.
6.09. INDEMNITY.
(A) THE BORROWER AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD
HARMLESS ADMINISTRATIVE AGENT AND EACH LENDER, EACH OF THEIR RESPECTIVE
AFFILIATES, AND EACH OF THEIR RESPECTIVE (INCLUDING SUCH AFFILIATES') OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, SHAREHOLDERS AND CONSULTANTS
(INCLUDING, WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION WITH THE
SATISFACTION OR ATTEMPTED SATISFACTION OF ANY OF THE CONDITIONS SET FORTH
HEREIN) OF EACH OF THE FOREGOING (COLLECTIVELY, "INDEMNITEES") FROM AND AGAINST
ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR
NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND
DISBURSEMENTS OF COUNSEL FOR SUCH INDEMNITEES IN CONNECTION WITH ANY
INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING, WHETHER OR NOT SUCH
INDEMNITEES SHALL BE DESIGNATED A PARTY THERETO OR SUCH PROCEEDING SHALL HAVE
ACTUALLY BEEN INSTITUTED), IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST SUCH
INDEMNITEES (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND WHETHER BASED ON ANY
FEDERAL, STATE, OR LOCAL LAWS AND REGULATIONS, UNDER COMMON LAW OR AT EQUITABLE
CAUSE, OR ON CONTRACT, TORT OR OTHERWISE), ARISING FROM OR CONNECTED WITH THE
PAST, PRESENT OR FUTURE OPERATIONS OF THE PARENT, THE BORROWER, ANY RESTRICTED
SUBSIDIARY OF THE BORROWER OR THE PARENT, ANY OTHER RESTRICTED SUBSIDIARY, ANY
AFFILIATE OR ANY PREDECESSORS IN INTEREST, OR THE PAST, PRESENT OR FUTURE
ENVIRONMENTAL CONDITION OF PROPERTY OF THE PARENT, THE BORROWER, ANY RESTRICTED
SUBSIDIARY OF THE BORROWER OR PARENT, ANY OTHER RESTRICTED SUBSIDIARY, ANY
AFFILIATE OR ANY PREDECESSORS IN INTEREST, IN EACH CASE RELATING TO OR ARISING
OUT OF THIS AGREEMENT, THE LOAN PAPERS OR ANY ACT, EVENT OR TRANSACTION OR
ALLEGED ACT, EVENT OR TRANSACTION RELATING OR ATTENDANT THERETO AND THE
MANAGEMENT OF THE ADVANCES BY THE ADMINISTRATIVE AGENT, INCLUDING IN CONNECTION
WITH, OR AS A RESULT, IN WHOLE OR IN PART, OF ANY NEGLIGENCE OF ADMINISTRATIVE
AGENT OR ANY LENDER (OTHER THAN THOSE MATTERS INVOLVING A CLAIM BY A
PARTICIPANT PURCHASER AGAINST ANY LENDER AND NOT THE BORROWER), OR THE USE OR
INTENDED USE OF THE PROCEEDS OF THE ADVANCES HEREUNDER, OR IN CONNECTION WITH
ANY INVESTIGATION OF ANY POTENTIAL MATTER COVERED HEREBY, BUT EXCLUDING ANY
CLAIM OR LIABILITY THAT ARISES AS THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNITEE, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF
COMPETENT JURISDICTION (COLLECTIVELY, "INDEMNIFIED MATTERS").
(B) IN ADDITION, THE BORROWER SHALL PERIODICALLY, UPON REQUEST,
REIMBURSE EACH INDEMNITEE FOR ITS REASONABLE LEGAL AND OTHER ACTUAL REASONABLE
EXPENSES (INCLUDING THE COST OF ANY INVESTIGATION AND PREPARATION) INCURRED IN
CONNECTION WITH ANY INDEMNIFIED MATTER. IF FOR ANY REASON THE FOREGOING
INDEMNIFICATION IS UNAVAILABLE TO ANY INDEMNITEE OR
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INSUFFICIENT TO HOLD ANY INDEMNITEE HARMLESS WITH RESPECT TO INDEMNIFIED
MATTERS, THEN THE BORROWER SHALL CONTRIBUTE TO THE AMOUNT PAID OR PAYABLE BY
SUCH INDEMNITEE AS A RESULT OF SUCH LOSS, CLAIM, DAMAGE OR LIABILITY IN SUCH
PROPORTION AS IS APPROPRIATE TO REFLECT NOT ONLY THE RELATIVE BENEFITS RECEIVED
BY THE BORROWER AND THE HOLDERS OF THE CAPITAL STOCK OF THE BORROWER ON THE ONE
HAND, AND SUCH INDEMNITEE ON THE OTHER HAND, BUT ALSO THE RELATIVE FAULT OF THE
BORROWER AND SUCH INDEMNITEE, AS WELL AS ANY OTHER RELEVANT EQUITABLE
CONSIDERATIONS. THE REIMBURSEMENT, INDEMNITY AND CONTRIBUTION OBLIGATIONS UNDER
THIS SECTION SHALL BE IN ADDITION TO ANY LIABILITY WHICH THE BORROWER MAY
OTHERWISE HAVE, SHALL EXTEND UPON THE SAME TERMS AND CONDITIONS TO EACH
INDEMNITEE AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF ANY
SUCCESSORS, ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES, AS THE CASE MAY BE, OF
THE BORROWER, THE ADMINISTRATIVE AGENT, THE LENDERS AND ALL OTHER INDEMNITEES.
THE OBLIGATIONS OF THE BORROWER UNDER THIS SECTION 6.09 SHALL SURVIVE (I) THE
EXECUTION OF THIS AGREEMENT AND (II) ANY TERMINATION OF THIS AGREEMENT AND
PAYMENT OF THE OBLIGATIONS.
6.10. Management Fees Paid and Earned. The Borrower agrees that no
Management Fees will be paid by the Borrower or any Restricted Subsidiary to
any Person at any time.
6.11. Authorizations and Material Agreements. The Borrower shall, and
shall cause the Parent and the Restricted Subsidiaries to, obtain and comply in
all material respects with all FCC Licenses relating to the Borrower's, the
Parent's or the Subsidiaries' businesses. The Borrower shall, and shall cause
the Parent and the Restricted Subsidiaries to, obtain and comply in all
material respects with all Authorizations relating to such businesses, except
to the extent that a failure to do so could not reasonably be expected to cause
or result in a Material Adverse Change. The Borrower shall, and shall cause the
Parent and all other Restricted Subsidiaries to, maintain and comply in all
material respects with all agreements necessary or appropriate for any of them
to own, maintain or operate any of their businesses or Properties.
6.12. Further Assurances. The Borrower shall, and shall cause the
Parent and each other Restricted Subsidiary to, make, execute or endorse and
acknowledge and deliver or file or cause the same to be done, all such
vouchers, invoices, notices, certifications and additional agreements,
undertakings, conveyances, deeds of trust, mortgages, security agreements,
transfers, assignments, financing statements and other assurances, and take any
and all such other action, as Administrative Agent may, from time to time, deem
reasonably necessary or proper in connection with the Parent or any Restricted
Subsidiary's obligations under any of the Loan Papers and the obligations of
the Borrower thereunder, or for better assuring and confirming unto
Administrative Agent all or any part of the security for any of the
Obligations.
6.13. Year 2000 Compliance. The Borrower will promptly notify
Administrative Agent if the Borrower discovers or determines that any computer
application (including those of its suppliers and vendors) that is material to
its or any of the Parent's or any of the Borrower's and/or the Parent's
Subsidiaries' businesses and operations will not be Year 2000 Compliant on a
timely basis, except to the extent that such failure could not be reasonably
expected to cause a Material Adverse Change.
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6.14. Subsidiaries and Other Obligors. The Borrower shall cause each
of the Restricted Subsidiaries and the Parent to comply with each provision of
this Article VI.
ARTICLE VII. NEGATIVE COVENANTS
So long as the Available Commitment, any Advance, or any portion of
the Obligations is outstanding, or the Borrower, the Parent or any Restricted
Subsidiary owes any other amount hereunder or under any other Loan Paper:
7.01. Financial Covenants. The Borrower and the Restricted
Subsidiaries shall comply with the following covenants:
(a) Total Leverage Ratio. At all times during the term hereof, the
Total Leverage Ratio shall not be greater than 3.00 to 1.00, and in the event
the Conversion Date is extended for an additional 364-day period pursuant to
Section 2.16(a) hereof or the Borrower converts to a Term Loan pursuant to
Section 2.16(b) hereof, 2.50 to 1.00.
(b) Interest Coverage Ratio. At all times during the term hereof, the
Interest Coverage Ratio shall not be less than 2.50 to 1.00.
(c) Fixed Charges Coverage Ratio. At all times during the term hereof,
the Fixed Charges Coverage Ratio shall not be less than 1.25 to 1.00.
7.02. Debt. The Borrower shall not, and shall not permit the Parent or
any of the other Restricted Subsidiaries to, create, incur, assume, become or
be liable in any manner in respect of or suffer to exist, any Debt, except (a)
Debt under the Loan Papers, (b) Debt under the Subordinated Notes and other
Debt in existence on the date hereof as shown on Schedule 5.08 hereto, and
renewals, extensions (but not increases) and refinancings thereof on terms
substantially similar thereto and on terms no more restrictive, (c) trade
payables incurred and paid in the ordinary course of business, (d) Debt between
the Borrower and its Restricted Subsidiaries, and (e) so long as there exists
no Default or Event of Default in existence at the time incurred and none is
caused thereby, (i) $40,000,000 in Debt constituting Capital Leases outstanding
in the aggregate at any one time, (ii) unsecured subordinated Debt of the
Borrower on terms and conditions acceptable to the Administrative Agent and
each Lender, subordinated to the Facility pursuant to the subordination
language set forth on Schedule 7.02 hereto, (iii)with respect to the Borrower
Debt of the Borrower under Interest Hedge Agreements, (iv) Debt For Borrowed
Money not in excess of $5,000,000 secured by a Lien on the Provo, Utah
property, (v) no more than $25,000,000 in recourse third- party financing and
factoring arrangements outstanding at any one time, and (vi) accrued but unpaid
Earn- Out Liabilities.
7.03. Contingent Liabilities. The Borrower shall not, and shall not
permit the Parent, or any of the Restricted Subsidiaries to, create, incur,
assume, become or be liable in any manner in respect of, or suffer to exist,
any Contingent Liabilities, except Contingent Liabilities under
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or relating to the Loan Papers, Contingent Liabilities incurred in the ordinary
course of business, and Contingent Liabilities described on Schedule 7.03
hereof.
7.04. Liens. The Borrower shall not, and shall not permit the Parent,
or any of the Restricted Subsidiaries to, create or suffer to exist any Lien
upon any of its Properties, except Permitted Liens and Liens securing Debt
permitted under Section 7.02(e)(i) hereof. It is specifically acknowledged and
agreed that the Borrower shall not, and shall not permit the Parent or any of
the Restricted Subsidiaries to, hereafter agree with any Person (other than
Administrative Agent) not to grant a Lien on any of its assets.
7.05. Dispositions of Assets. Except for Permitted Dispositions, the
Borrower shall not, and shall not permit the Parent or any of the Restricted
Subsidiaries to, sell, lease, assign, or otherwise dispose of any assets of the
Borrower or any Restricted Subsidiary, or otherwise consummate any Asset Sale.
7.06. Distributions and Restricted Payments. The Borrower shall not,
and shall not permit the Parent or any Restricted Subsidiary to, make any
Restricted Payments, other than any Restricted Payment in the form of a
Distribution made by any Restricted Subsidiary to any other Restricted
Subsidiary or to the Borrower, and other than so long as there exists no
Default or Event of Default both before and after giving effect to any such
Restricted Payment, scheduled cash interest payments required to be paid by WA
Telecom Products Co., Inc. under the Subordinated Notes and issuances of common
stock by the Parent in connection with its Earn-Out Liabilities.
7.07. Merger; Consolidation. The Borrower shall not, and shall not
permit the Parent or any of the Restricted Subsidiaries to, merge into or
consolidate with any Person; provided that any Restricted Subsidiary may be
merged or consolidated with or into any other Restricted Subsidiary or with or
into the Borrower (so long as the Borrower shall be continuing or surviving
corporation).
7.08. Business. The Borrower shall not, and shall not permit the
Parent or any of the other Restricted Subsidiaries to, change the nature of its
business as now conducted. The Borrower shall not conduct any business except
the ownership and operation of telecommunications equipment manufacturing, long
distance, and long-haul carrier businesses. WA Telecom Products Co, Inc. shall
not conduct any business except the ownership of Capital Stock of World Access
Holdings, Inc. World Access, Inc. shall not conduct any business except the
ownership of Capital Stock of WA Telecom Products Co., Inc. and Telco Systems,
Inc.
7.09. Transactions with Affiliates. The Borrower shall not, and shall
not permit the Parent or any of the Restricted Subsidiaries to, enter into or
be party to a transaction with any Affiliate, except on terms no less favorable
than could be obtained on an arms'-length basis with a Person that is not an
Affiliate.
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7.10. Loans and Investments. The Borrower shall not, and shall not
permit the Parent or any of the Restricted Subsidiaries to, make any loan,
advance, extension of credit or capital contribution to, or make or have any
Investment in, any Person, or make any commitment to make any such extension of
credit or Investment, or make any acquisition, except (a) Investments in Cash
Equivalents, (b) Permitted Acquisitions, (c) provided no Default or Event of
Default exists or would result therefrom, Investments in Restricted
Subsidiaries that have executed or will execute Loan Papers required by the
Administrative Agent, and (d) provided no Default or Event of Default exists or
would result therefrom, Investments in Unrestricted Subsidiaries, and
Investments of not more than $5,000,000 individually or $25,000,000 in the
aggregate in companies in similar lines of business to those of the Borrower,
the Parent or the Restricted Subsidiaries.
7.11. Fiscal Year and Accounting Method. The Borrower shall not, and
shall not permit the Parent or any of the Restricted Subsidiaries to, change
its fiscal year or method of accounting, except as may be required by GAAP.
7.12. Issuance of Partnership Interest and Capital Stock; Amendment of
Articles and ByLaws. Except in connection with the transactions consummated on
or prior to the Closing Date, the Borrower shall not, and shall not permit WA
Telecom Products, Inc. or any of the Restricted Subsidiaries to, issue, sell or
otherwise dispose of any Capital Stock in such Person, or any options or rights
to acquire such partnership interest or capital stock not issued and
outstanding on the Closing Date. The Borrower shall not amend its articles of
organization or bylaws and the Borrower shall not permit the Parent or any of
the other Restricted Subsidiaries to amend its articles of organization or
bylaws or partnership agreement, as applicable, except, so long as there exists
no Default or Event of Default both prior to and after giving effect to such
amendment, and after written notice to the Administrative Agent, the Borrower,
the Parent, or any of the other Restricted Subsidiaries may make (i) changes to
comply with applicable Law and (ii) changes which would not result in a
Material Adverse Change.
7.13. Change of Ownership. The Borrower shall not, and shall not
permit the Borrower or any Restricted Subsidiary to, permit any change in the
ownership of the Borrower and each Guarantor (other than World Access, Inc.)
from the ownership thereof as of the date hereof as disclosed on Schedule 5.01
hereto.
7.14. Sale and Leaseback. Other than a transaction with respect to the
Borrower's real property located at Provo, Utah, the Borrower shall not, and
shall not permit any of the Parent, or the Restricted Subsidiaries to, enter
into any arrangement whereby it sells or transfers any of its assets, and
thereafter rents or leases such assets.
7.15. Compliance with ERISA. The Borrower shall not, and shall not
permit the Parent or any Subsidiary of the Borrower or the Parent to, directly
or indirectly, or permit any member of such Person's Controlled Group to
directly or indirectly, (a) terminate any Plan so as to result in any material
(in the opinion of Administrative Agent) liability to any of the Borrower, the
Parent or any Subsidiary of the Borrower or the Parent, or any member of their
Controlled
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Group, (b) permit to exist any ERISA Event, or any other event or condition,
which presents the risk of any material (in the opinion of Administrative
Agent) liability of any of the Parent, the Borrower or any Subsidiary of the
Parent or the Borrower, or any member of their Controlled Group, (c) make a
complete or partial withdrawal (within the meaning of Section 4201 of ERISA)
from any Multiemployer Plan so as to result in any material (in the opinion of
Administrative Agent) liability to any of the Borrower, the Parent or any
Subsidiary of the Parent or the Borrower, or any member of their Controlled
Group, (d) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder (except in the ordinary course of business
consistent with past practice) which could result in any material (in the
opinion of Administrative Agent) liability to any of the Parent, the Borrower
or any Subsidiary of the Parent or the Borrower, or any member of their
Controlled Group, or (e) permit the present value of all benefit liabilities,
as defined in Title IV of ERISA, under each Plan of each of the Parent, the
Borrower or any Subsidiary of the Parent or the Borrower, or any member of
their Controlled Group (using the actuarial assumptions utilized by the PBGC
upon termination of a Plan) to materially (in the opinion of Administrative
Agent) exceed the fair market value of Plan assets allocable to such benefits
all determined as of the most recent valuation date for each such Plan.
7.16. Rate Swap Exposure. The Borrower shall not enter into or become
liable in respect of any Interest Hedge Agreement pursuant to which the
aggregate amount subject to such Interest Hedge Agreements exceeds the
aggregate principal amount of all Advances.
7.17. Restricted Subsidiaries and Other Obligors. The Borrower shall
not permit the Parent or any of its Restricted Subsidiaries to violate any
provision of this Article VII.
7.18. Limitation on Restrictive Agreements. The Borrower shall not,
and shall not permit the Parent or any Restricted Subsidiary to, other than in
connection with the Subordinated Notes, enter into any indenture, agreement,
instrument, financing document or other arrangement which, directly or
indirectly, prohibits or restrains, or has the effect of prohibiting or
restraining, or imposes materially adverse conditions upon: (a) the incurrence
of Debt, (b) the granting of Liens, (c) the making or granting of Guarantees,
(d) the payment of dividends or Distributions, (e) the purchase, redemption or
retirement of any Capital Stock, (f) the making of loans or advances, (g)
transfers or sales of property or assets (including Capital Stock) by the
Parent, the Borrower or any of the Restricted Subsidiaries, or (h) the making
of Investments or acquisitions.
ARTICLE VIII. EVENTS OF DEFAULT
8.01. Events of Default. Any one or more of the following shall be an
"Event of Default" hereunder, if the same shall occur for any reason
whatsoever, whether voluntary or involuntary, by operation of Law or otherwise:
(a) The Borrower shall fail to pay (i) any principal on any Note when
due; or (ii) any interest on any Note within three days after the same becomes
due; or (iii) any Commitment Fees, other fees, or other amounts payable under
any Loan Paper within five days after the same becomes due;
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(b) Any representation or warranty made or deemed made by the
Borrower, the Parent or any Restricted Subsidiary (or any of its officers or
representatives) under or in connection with any Loan Papers shall prove to
have been incorrect or misleading in any material respect when made or deemed
made;
(c) The Borrower, the Parent or any Restricted Subsidiary shall fail
to perform or observe any term or condition contained in Article VI hereof
(except Section 6.05(f) hereof) which is not remedied within thirty days after
the earlier of (i) actual knowledge of such breach by the Parent, the Borrower
or any of the Restricted Subsidiaries of such breach and (ii) written notice
from the Administrative Agent or any Lender of such breach;
(d) The Borrower, the Parent or any Restricted Subsidiary shall fail
to perform or observe any term or covenant contained in Article VII hereof or
in Section 6.05(f) hereof;
(e) The Borrower, the Parent or any Restricted Subsidiary shall fail
to perform or observe any other term or covenant contained in any Loan Paper,
other than those described in Sections 8.01(a), (b), (c) and (d) hereof which
is not remedied within thirty days after the earlier of (i) actual knowledge of
such breach by the Borrower, the Parent or any of the Restricted Subsidiaries
of such breach and (ii) written notice from Administrative Agent or any Lender
of such breach;
(f) (i) Any Loan Paper or material provision thereof shall, for any
reason, not be valid and binding on the Borrower, the Parent or any Restricted
Subsidiary signatory thereto, or not be in full force and effect, or shall be
declared to be null and void; (ii) the validity or enforceability of any Loan
Paper shall be contested by the Borrower, the Parent, or any Restricted
Subsidiary; (iii) the Borrower, the Parent or any Restricted Subsidiary shall
deny that it has any or further liability or obligation under its respective
Loan Papers; or(iv) any default or breach under any provision of any Loan
Papers shall continue after the applicable grace period, if any, specified in
such Loan Paper;
(g) Any of the following shall occur: (i) any of the Parent, the
Borrower or any Subsidiary of the Parent or the Borrower shall make an
assignment for the benefit of creditors or be unable to pay its debts generally
as they become due; (ii) any of the Parent, the Borrower or any Subsidiary of
the Parent or the Borrower shall petition or apply to any Tribunal for the
appointment of a trustee, receiver or liquidator of it or of any substantial
part of its assets, or shall commence any proceedings relating to any of the
Parent, the Borrower or any Subsidiary of the Parent or the Borrower under any
Debtor Relief Law, whether now or hereafter in effect; (iii) any such petition
or application shall be filed, or any such proceedings shall be commenced,
against any of the Parent, the Borrower or any Subsidiary of the Parent or the
Borrower, or an order, judgment or decree shall be entered appointing any such
trustee, receiver or liquidator, or approving the petition in any such
proceedings and such petition, application or proceedings shall continue
undismissed for 30 days or such order, judgment or decree shall continue
unstayed and in effect for 30 days; (iv) any final order, judgment or decree
shall be entered in any proceedings against any of the Parent, the Borrower or
any Subsidiary of the Parent or the Borrower decreeing
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its dissolution; (v) any final order, judgment or decree shall be entered in
any proceedings against any of the Parent, the Borrower or any Subsidiary of
the Parent or the Borrower decreeing its split-up which requires the
divestiture of a substantial part of its assets; or (vi) any of the Parent, the
Borrower or any Subsidiary of the Parent or the Borrower shall petition or
apply to any Tribunal for the appointment of a trustee, receiver or liquidator
of it or of any substantial part of its assets, or shall commence any
proceedings relating to any of the Parent, the Borrower or any Subsidiary of
the Parent or the Borrower under any Debtor Relief Law, whether now or
hereafter in effect;
(h) (i) Any of the Borrower, the Parent or any Restricted Subsidiary
shall fail to pay any Debt or Contingent Liability of $5,000,000 or more when
due (whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Debt
or Contingent Liability; (ii) any of the Borrower, the Parent or any Restricted
Subsidiary shall fail to perform or observe any term or covenant contained in
any agreement or instrument relating to any such Debt or Contingent Liability,
when required to be performed or observed, and such failure shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, and can result in acceleration of the maturity of such Debt or
Contingent Liability; or (iii) any such Debt or Contingent Liability shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated maturity thereof;
(i) Any of the Borrower, the Parent or Restricted Subsidiary shall
have any judgment(s) outstanding against it for the payment of $5,000,000 or
more, and such judgment(s) shall remain unstayed, in effect, uncontested and
unpaid for a period of 30 days;
(j) (i) Any Authorization necessary for the ownership or essential for
the operation of any of the interstate or intrastate telecommunications systems
or networks operated by the Parent, the Borrower or any Restricted Subsidiary
shall expire, and on or prior to such expiration, the same shall not have been
renewed or replaced by another Authorization authorizing substantially the same
operations; (ii) any Authorization necessary for the ownership or essential for
the operation of any of the Parent's, the Borrower's or the Restricted
Subsidiaries' businesses shall be canceled, revoked, terminated, rescinded,
annulled, suspended or modified in a materially adverse respect, or shall no
longer be in full force and effect, or the grant or the effectiveness thereof
shall have been stayed, vacated, reversed or set aside, and such action shall
be no longer subject to further administrative or judicial review; (iii) the
FCC shall have issued, on its own initiative and not upon the complaint of or
at the request of a third party, any hearing designation order in any
non-comparative license renewal proceeding or any license revocation proceeding
involving any License or Authorization necessary for the ownership or essential
for the operation of the Borrower's, the Parent's or the Restricted
Subsidiaries' businesses, or (iv) in any non-comparative license renewal
proceeding or license revocation proceeding initiated by the FCC upon the
complaint of or at the request of a third party or any comparative (i.e.,
multiple applicant) license renewal proceeding, in each case involving any
License or Authorization necessary for the ownership or essential for the
operation of such business; or (v) any
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administrative law judge of the FCC (or successor to the functions of an
administrative law judge of the FCC) shall have issued an initial decision to
the effect that the Parent, the Borrower or any Restricted Subsidiary lacks the
basic qualifications to own or operate its business or is not deserving of a
renewal expectancy, and such initial decision shall not have been timely
appealed or shall otherwise have become an order that is final and no longer
subject to further administrative or judicial review;
(k) Any of the Parent, the Borrower or any Subsidiary of the Parent or
the Borrower or any ERISA Affiliate shall have committed a failure described in
Section 302(f)(l) of ERISA, and the amount determined under Section 302(f)(3)
of ERISA is equal to or greater than $5,000,000;
(l) The Parent, the Borrower, any Subsidiary of the Parent or the
Borrower, or any ERISA Affiliate, shall have been notified by the sponsor of a
Multiemployer Plan that such Plan is in reorganization or is being terminated,
within the meaning of Title IV of ERISA, if as a result thereof, the aggregate
annual contributions to all Multiemployer Plans in reorganization or being
terminated is increased over the amounts contributed to such Plans for the
preceding Plan year by an amount exceeding $5,000,000;
(m) The Borrower, the Parent or any Restricted Subsidiary shall be
required under any Environmental Law (i) to implement any remedial,
neutralization or stabilization process or program, the cost of which could
constitute a Material Adverse Change, or (ii) to pay any penalty, fine or
damages in an aggregate amount of $5,000,000 or more;
(n) (i) Any Property (whether leased or owned) of any of the Borrower,
the Parent or any Restricted Subsidiary, or the operations conducted thereon by
any of them or any current or prior owner or operator thereof (in the case of
real Property), shall violate or have violated any applicable Environmental
Law, if such violation could constitute a Material Adverse Change; or (ii) any
of the Borrower, the Parent, or any Restricted Subsidiary shall not obtain or
maintain any License required to be obtained or filed under any Environmental
Law in connection with the use of such Property and assets, including, without
limitation, past or present treatment, storage, disposal or release of
Hazardous Materials into the environment, if the failure to obtain or maintain
the same could constitute a Material Adverse Change;
(o) Any Collateral Document shall for any reason (other than pursuant
to the terms thereof) cease to create a valid and perfected first priority Lien
in the Collateral (subject to Permitted Liens) purported to be covered thereby,
and the value of such Collateral, singly or in the aggregate, equals or exceeds
$5,000,000;
(p) The occurrence of any Change of Control;
(q) (i) A petition or complaint is filed before or by the Federal
Trade Commission, the United States Justice Department, or any other Tribunal,
seeking to cause the Borrower, the Parent or any Restricted Subsidiary to
divest a significant portion of its assets or the Capital
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Stock of any of the Parent, the Borrower or any Restricted Subsidiary pursuant
to any antitrust, restraint of trade, unfair competition or similar Laws, and
such petition or complaint is not dismissed or discharged within 60 days of the
filing thereof, which such divestiture could reasonably be expected to cause a
Material Adverse Change, or (ii) a warrant of attachment or execution or
similar process shall be issued or levied against Property of the Parent, the
Borrower or any Restricted Subsidiary which, together with all other such
Property of the Borrower, the Parent and the Restricted Subsidiaries subject to
other such process, exceeds in the aggregate $5,000,000 in value, and if such
judgment or award is not insured or, within 60 days after the entry, issue or
levy thereof, such judgment, warrant or process shall not have been paid or
discharged, bonded or stayed pending appeal, or if, after the expiration of any
such stay, such judgment, warrant or process shall not have been paid or
discharged;
(r) (i) Any civil action, suit or proceeding shall be commenced
against any of the Borrower, the Parent or any Restricted Subsidiary under any
federal or state racketeering statute (including, without limitation, the
Racketeer Influenced and Corrupt Organization Act of 1970)("RICO"), and such
suit shall be adversely determined by a court of applicable jurisdiction
resulting in a judgment against the Borrower, the Parent or any Restricted
Subsidiary in excess of $5,000,000; or (ii) any criminal action or proceeding
shall be commenced against any of the Borrower, the Parent or any Restricted
Subsidiary under any federal or state racketeering statute (including, without
limitation, RICO);
(s) There shall exist any Event of Default relating to the
Subordinated Notes or under the Indenture; or
(t) Any of the Parent, the Borrower or any of their Subsidiaries shall
fail to be Year 2000 Compliant.
8.02. Remedies Upon Default. If an Event of Default described in
Section 8.01(g) hereof shall occur with respect to the Parent, the Borrower or
any Subsidiary of the Parent or the Borrower, the Available Commitment shall be
immediately terminated and the aggregate unpaid principal balance of and
accrued interest on all Advances shall, to the extent permitted by applicable
Law, thereupon become due and payable concurrently therewith, without any
action by Administrative Agent or any Lender, and without diligence,
presentment, demand, protest, notice of protest or intent to accelerate, or
notice of any other kind, all of which are hereby expressly waived. Subject to
the immediately foregoing sentence, if any Event of Default shall occur and be
continuing, then no LIBOR Advances shall be available to the Borrower, and
Administrative Agent may at its election, and shall at the direction of
Majority Lenders, do any one or more of the following:
(a) Declare the entire unpaid balance of all Advances immediately due
and payable, whereupon it shall be due and payable without diligence,
presentment, demand, protest, notice of protest or intent to accelerate or
notice of any other kind (except notices specifically provided for under
Section 8.01), all of which are hereby expressly waived (except to the extent
waiver of the foregoing is not permitted by applicable Law);
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(b) Terminate the Available Commitment;
(c) Reduce any claim of Administrative Agent and Lenders to judgment;
or
(d) Exercise any Rights afforded under any Loan Papers or by Law,
including, without limitation to the UCC, in equity or otherwise.
8.03. Cumulative Rights. All Rights available to Administrative Agent
and Lenders under the Loan Papers shall be cumulative of and in addition to all
other Rights granted thereto at Law or in equity, whether or not amounts owing
thereunder shall be due and payable and whether or not Administrative Agent or
any Lender shall have instituted any suit for collection or other action in
connection with the Loan Papers.
8.04. Waivers. The acceptance by Administrative Agent or any Lender at
any time and from time to time of partial payment of any amount owing under any
Loan Papers shall not be deemed to be a waiver of any Default or Event of
Default then existing. No waiver by Administrative Agent or any Lender of any
Default or Event of Default shall be deemed to be a waiver of any Default or
Event of Default other than such Default or Event of Default. No delay or
omission by Administrative Agent or any Lender in exercising any Right under
the Loan Papers shall impair such Right or be construed as a waiver thereof or
an acquiescence therein, nor shall any single or partial exercise of any such
Right preclude other or further exercise thereof or the exercise of any other
Right under the Loan Papers or otherwise.
8.05. Performance by Administrative Agent or any Lender. Should any
covenant of any of the Borrower, the Parent or the Restricted Subsidiaries fail
to be performed in accordance with the terms of the Loan Papers, Administrative
Agent may, at its option, perform or attempt to perform such covenant on behalf
of such Person. Notwithstanding the foregoing, it is expressly understood that
neither Administrative Agent nor any Lender assumes, and neither shall ever
have, except by express written consent of Administrative Agent or such Lender,
any liability or responsibility for the performance of any duties or covenants
of any of the Borrower, the Parent or the Restricted Subsidiaries.
8.06. Expenditures. The Borrower shall reimburse Administrative Agent
and each Lender for any sums spent by it in connection with the exercise of any
Right provided herein. Such sums shall bear interest at the lesser of (a) the
Base Rate in effect from time to time, plus 2.0%, and (b) the Highest Lawful
Rate, from the date spent until the date of repayment by the Borrower.
8.07. Control. None of the covenants or other provisions contained in
this Agreement shall, or shall be deemed to, give Administrative Agent or any
Lender any Rights to exercise control over the affairs and/or management of any
of the Borrower, the Parent or the Restricted Subsidiaries, the power of
Administrative Agent and each Lender being limited to the Rights to exercise
the remedies provided in this Article; provided, however, that if
Administrative Agent or any Lender becomes the owner of any partnership, stock
or other equity interest in any Person,
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whether through foreclosure or otherwise, it shall be entitled to exercise such
legal Rights as it may have by being an owner of such stock or other equity
interest in such Person.
ARTICLE IX. THE ADMINISTRATIVE AGENT
9.01. Authorization and Action. Each Lender hereby appoints and
authorizes Administrative Agent to take such action as Administrative Agent
deems appropriate on its behalf and to exercise such powers under this
Agreement and the other Loan Papers as are delegated to the Administrative
Agent by the terms of the Loan Papers, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement and the other Loan Papers (including, without limitation,
enforcement or collection of the Notes), Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of Majority Lenders (or all
Lenders, if required under Section 10.01), and such instructions shall be
binding upon all Lenders; provided, however, that Administrative Agent shall
not be required to take any action which exposes Administrative Agent to
personal liability or which is contrary to any Loan Papers or applicable Law.
Administrative Agent agrees to give to each Lender notice of each notice given
to it by the Borrower pursuant to the terms of this Agreement and to distribute
to each applicable Lender in like funds all amounts delivered to Administrative
Agent by the Borrower for the Ratable or individual account of any Lender.
9.02. Administrative Agent's Reliance, Etc. Neither Administrative
Agent, nor any of its directors, officers, agents, employees, or
representatives shall be liable for any action taken or omitted to be taken by
it or them under or in connection with this Agreement or any other Loan Paper,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, Administrative Agent (a) may
treat the payee of any Note as the holder thereof until Administrative Agent
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to Administrative Agent; (b) may consult with
legal counsel (including counsel for the Borrower or any of the Restricted
Subsidiaries), independent public accountants and other experts selected by it,
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
made in or in connection with this Agreement or any other Loan Papers; (d)
shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement or
any other Loan Papers on the part of the Borrower, the Parent or the Restricted
Subsidiaries or to inspect the Property (including the books and records) of
the Borrower, the Parent or the Restricted Subsidiaries; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any other
Loan Papers, or any other instrument or document furnished pursuant hereto; and
(f) shall incur no liability under or in respect of this Agreement or any other
Loan Papers by acting upon any notice, consent, certificate or other
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instrument or writing believed by it to be genuine and signed or sent by the
proper party or parties.
9.03. NationsBank, N. A. and Affiliates. With respect to its Available
Commitment, its Advances, its Specified Percentage and any Loan Papers,
NationsBank, N. A. has the same Rights under this Agreement as any other Lender
and may exercise the same as though it were not Administrative Agent.
NationsBank, N. A. and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with, any of the Borrower, the
Parent or the Restricted Subsidiary, any Affiliate thereof, and any Person who
may do business therewith, all as if NationsBank, N. A. were not Administrative
Agent and without any duty to account therefor to any Lender.
9.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Administrative Agent or any other
Lender, and based on the financial statements referred to in Section 5.04
hereof and such other 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
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Papers.
9.05. Indemnification by Lenders. Lenders shall indemnify
Administrative Agent, Ratable, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against Administrative Agent in any way
relating to or arising out of any Loan Papers or any action taken or omitted by
Administrative Agent thereunder, including any negligence of Administrative
Agent; provided, however, that no Lender shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements resulting from Administrative Agent's
gross negligence or willful misconduct. Without limitation of the foregoing,
Lenders shall reimburse Administrative Agent, Ratable, promptly upon demand for
any out-of-pocket expenses (including reasonable attorneys' fees) incurred by
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiation, legal proceedings or otherwise) of, or legal and other advice in
respect of rights or responsibilities under, the Loan Papers. The indemnity
provided in this Section 9.05 shall survive the termination of this Agreement.
9.06. Successor Administrative Agent. Administrative Agent may resign
at any time by giving written notice thereof to Lenders and the Borrower, and
may be removed at any time with or without cause by the action of all Lenders
(other than Administrative Agent, if it is a Lender). Upon any such
resignation, Majority Lenders shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed and shall have accepted such appointment within thirty days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of Lenders,
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appoint a successor Administrative Agent, which shall be a commercial bank
organized under the Laws of the United States of America or of any State
thereof and having a combined capital and surplus of at least $50,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the Rights and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations under the Loan Papers, provided that
if the retiring or removed Administrative Agent is unable to appoint a
successor Administrative Agent, Administrative Agent shall, after the
expiration of a sixty day period from the date of notice, be relieved of all
obligations as Administrative Agent hereunder. Notwithstanding any
Administrative Agent's resignation or removal hereunder, the provisions of this
Article IX shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
ARTICLE X. MISCELLANEOUS
10.01. Amendments and Waivers. No amendment or waiver of any provision
of this Agreement, or any other Loan Papers, nor consent to any departure by
the Borrower, the Parent or the Restricted Subsidiaries therefrom, shall be
effective unless the same shall be in writing and signed by Administrative
Agent with the consent of Majority Lenders, and then any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall
(and the result of action or failure to take action shall not), unless in
writing and signed by all of Lenders and Administrative Agent, (a) increase the
Available Commitment, the Unavailable Commitment, or the Letter of Credit
Commitment, (b) reduce any principal, interest, fees or other amounts payable
hereunder, or waive or result in the waiver of any Event of Default under
Section 8.01(a) hereof, or change the pro rata sharing of payments, (c)
postpone any date fixed for any payment of principal, interest, fees or other
amounts payable hereunder, (d) release any Collateral or Guaranties securing
any Person's obligations hereunder, other than releases specifically
contemplated hereby and by the Loan Papers, including, without limitation,
releases of assets that have been sold or transferred as specifically permitted
hereby or by the Loan Papers, or (e) change the meaning of Specified Percentage
or the number of Lenders required to take any action hereunder. No amendment,
waiver or consent shall affect the Rights or duties of Administrative Agent
under any Loan Papers, unless it is in writing and signed by Administrative
Agent in addition to the requisite number of Lenders.
10.02. Notices.
(a) Manner of Delivery. All notices communications and other materials
to be given or delivered under the Loan Papers shall, except in those cases
where giving notice by telephone is expressly permitted, be given or delivered
in writing. All written notices, communications and materials shall be sent by
registered or certified mail, postage prepaid, return receipt requested, by
telecopier or delivered by hand. In the event of a discrepancy between any
telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective
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notice except to the extent Administrative Agent, any Lender or the Borrower
has acted in reliance on such telephonic notice.
(b) Addresses. All notices, communications and materials to be given
or delivered pursuant to this Agreement shall be given or delivered at the
following respective addresses and telecopier and telephone numbers and to the
attention of the following individuals or departments:
If to the Borrower:
c/o World Access, Inc.
2240 Resurgens Plaza
945 E. Paces Ferry Road
Atlanta, Georgia 30326
Attention: Treasurer
Telephone No.: (404)231-2025
Facsimile No.: (404)365-9847
With a Copy to:
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Steven E. Fox
Telephone No.: (404)522-4700
Facsimile No.: (404)525-2224
If to Administrative Agent:
NationsBank, N.A.
901 Main Street, 64th Floor
Dallas, Texas 75202
Attention: David Williams
Telephone No.: (214) 508-9588
Facsimile No.: (214) 508-9390
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With a Copy to:
Donohoe, Jameson & Carroll, P.C.
3400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attention: Michael Cuda
Telephone No.: (214) 698-3867
Facsimile No.: (214) 744-0231
If to any Lender, to its address set forth below opposite its signature or on
any Assignment and Acceptance or amendment to this Agreement or at such other
address or, telecopier or telephone number or to the attention of such other
individual or department as the party to which such information pertains may
hereafter specify for the purpose in a notice to the other specifically
captioned "Notice of Change of Address".
(d) Effectiveness. Each notice, communication and any material to be
given or delivered to any party pursuant to this Agreement shall be effective
or deemed delivered or furnished (i) if sent by mail, on the fifth Business Day
after such notice, communication or material is deposited in the mail,
addressed as above provided, (ii) if sent by telecopier, when such notice,
communication or material is transmitted to the appropriate number determined
as above provided in this Section 10.02 and the appropriate receipt is received
or otherwise acknowledged, (iii) if sent by hand delivery or overnight courier,
when left at the address of the addressee addressed as above provided, and (iv)
if given by telephone, when communicated to the individual or any member of the
department specified as the individual or department to whose attention
notices, communications and materials are to be given or delivered except that
notices of a change of address, telecopier or telephone number or individual or
department to whose attention notices, communications and materials are to be
given or delivered shall not be effective until received; provided, however,
that notices to Administrative Agent pursuant to Article II shall be effective
when received. The Borrower agrees that Administrative Agent shall have no duty
or obligation to verify or otherwise confirm telephonic notices given pursuant
to Article II and agrees to indemnify and hold harmless Administrative Agent
and Lenders for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs and expenses resulting,
directly or indirectly, from acting upon any such notice.
10.03. Parties in Interest. All covenants and agreements contained in
this Agreement and all other Loan Papers shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto. Each Lender may
from time to time assign or transfer its interests hereunder pursuant to
Section 10.04 hereof. Neither the Borrower, the Parent or any Restricted
Subsidiary may assign or transfer its Rights or obligations under any Loan
Paper without the prior written consent of Administrative Agent.
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10.04. Assignments and Participations.
(a) Subject to the following sentence, each Lender (an "Assignor") may
assign its Rights and obligations as a Lender under the Loan Papers to one or
more Eligible Assignees pursuant to an Assignment and Acceptance, so long as
(i) each assignment shall be of a constant, and not a varying, percentage of
all Rights and obligations thereunder, (ii) each Assignor shall obtain in each
case the prior written consent of Administrative Agent (and, so long as the
Bond Letter of Credit is outstanding and issued by Bank Austria AG, the prior
written consent of Bank Austria Creditanstalt Corporate Finance, Inc.), which
consent shall not be unreasonably withheld, (iii) each Assignor shall in each
case pay a $3,500 processing fee to Administrative Agent, and (iv) no such
assignment is for an amount less than the lesser of the total amount of the
Available Commitment or $5,000,000.
Within five Business Days after Administrative Agent receives notice of any
such assignment, the Borrower shall execute and deliver to Administrative
Agent, in exchange for the Notes issued to Assignor, new Notes to the order of
such Assignor and its assignee in amounts equal to their respective Specified
Percentages of the Available Commitment. Such new Notes shall be dated the
effective date of the assignment. It is specifically acknowledged and agreed
that on and after the effective date of each assignment, the assignee shall be
a party hereto and shall have the Rights and obligations of a Lender under the
Loan Papers.
(b) Each Lender may sell participations to one or more Persons in all
or any of its Rights and obligations under the Loan Papers; provided, however,
that (i) such Lender's obligations under the Loan Papers shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) such Lender shall
remain the holder of its Notes for all purposes of the Loan Papers, (iv) the
participant shall be granted the Right to vote on or consent to only those
matters described in Sections 10.01(a), (b), (c) and (d), (v) each of the
Borrower, the Parent, Restricted Subsidiaries, Administrative Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with its Rights and obligations under the Loan Papers, and (vi) no
such participation is for an amount less than the lesser of the total amount of
the Available Commitment or $5,000,000.
(c) Any Lender may, in connection with any assignment or
participation, or proposed assignment or participation, disclose to the
assignee or participant, or proposed assignee or participant, any information
relating to the Borrower, the Parent or any Restricted Subsidiary furnished to
such Lender by or on behalf of any of the Borrower, the Parent or any
Restricted Subsidiary.
(d) Notwithstanding any other provision set forth in this Agreement,
each Lender may at any time create a security interest in all or any portion of
its Rights under this Agreement (including, without limitation, the Advances
owing to it and the Note or Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
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10.05. Sharing of Payments. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any Right of set-off,
or otherwise) on account of its Advances in excess of its Ratable share of
payments made by the Borrower, such Lender shall forthwith purchase
participations in Advances made by the other Lenders as shall be necessary to
share the excess payment Ratable with each of them; provided, however, that if
any of such excess payment is thereafter recovered from the purchasing Lender,
its purchase from each Lender shall be rescinded and each Lender shall repay
the purchase price to the extent of such recovery together with a Ratable share
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section
10.05 may, to the fullest extent permitted by Law, exercise all its Rights of
payment (including the Right of set-off) with respect to such participation as
fully as if such Lender were the direct creditor of the Borrower in the amount
of such participation.
10.06. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, each Lender 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 indebtedness at any time owing by such
Lender to or for the credit or the account of the Borrower against any and all
of the obligations of the Borrower now or hereafter existing under this
Agreement and the other Loan Papers, whether or not Administrative Agent or any
Lender shall have made any demand under this Agreement or the other Loan
Papers, and even if such obligations are unmatured. Each Lender shall promptly
notify the Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The Rights of each Lender under this Section 10.06 are in addition
to other Rights (including, without limitation, other Rights of set-off) which
such Lender may have.
10.07. Costs, Expenses, and Taxes.
(a) The Borrower agrees to pay on demand (i) all costs and expenses of
Administrative Agent and the Issuing Bank (with respect solely to the Letters
of Credit issued by it) in connection with the preparation and negotiation of
all Loan Papers, including, without limitation, the reasonable fees and
out-of-pocket expenses of Special Counsel and (ii) all costs and expenses
(including reasonable attorneys' fees and expenses) of Administrative Agent and
each Lender in connection with administration, interpretation, modification,
amendment, waiver, or release of any Loan Papers and any restructuring,
work-out or collection of any portion of the Obligations or the enforcement of
any Loan Papers.
(b) In addition, the Borrower shall pay any and all stamp, debt and
other Taxes payable or determined to be payable in connection with any payment
hereunder (other than Taxes on the overall net income of Administrative Agent
or any Lender or franchise Taxes or Taxes on capital or capital receipts of
Administrative Agent or any Lender), or the execution, delivery or recordation
of any Loan Papers, and agrees to save Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to, or resulting
from, any delay in
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paying or omission to pay any Taxes in accordance with this Section 10.07,
including any penalty, interest and expenses relating thereto. All payments by
the Borrower or any Restricted Subsidiary under any Loan Papers shall be made
free and clear of and without deduction for any present or future Taxes (other
than Taxes on the overall net income of Administrative Agent or any Lender of
any nature now or hereafter existing, levied or withheld, or franchise Taxes or
Taxes on capital or capital receipts of Administrative Agent or any Lender),
including all interest, penalties or similar liabilities relating thereto. If
the Borrower shall be required by Law to deduct or to withhold any Taxes from
or in respect of any amount payable hereunder, (i) the amount so payable shall
be increased to the extent necessary so that, after making all required
deductions and withholdings (including Taxes on amounts payable to
Administrative Agent or any Lender pursuant to this sentence), Administrative
Agent or any Lender receives an amount equal to the sum it would have received
had no such deductions or withholdings been made, (ii) the Borrower shall make
such deductions or withholdings, and (iii) the Borrower shall pay the full
amount deducted or withheld to the relevant taxing authority in accordance with
applicable Law. Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 10.07 shall survive the execution of this Agreement, termination
of the Available Commitment, repayment of the Obligations, satisfaction of each
agreement securing or assuring the Obligations and termination of this
Agreement and each other Loan Paper.
10.08. Indemnification by the Borrower. The Borrower shall indemnify,
defend and hold harmless Administrative Agent, each Lender and their respective
Affiliates, directors, officers, agents, employees and representatives, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted
against any of them in any way relating to or arising out of any Loan Papers
(including in connection with or as a result, in whole or in part, of the
negligence of any of them), any transaction related hereto or thereto, or any
act, omission or transaction of the Borrower, the Parent or any Restricted
Subsidiary and their respective Affiliates, or any of their directors,
partners, officers, agents, employees or representatives; provided, however,
that neither Administrative Agent nor any Lender shall be indemnified, defended
and held harmless pursuant to this Section 10.08 to the extent of any losses
or damages which the Borrower proves were caused by the indemnified party's
willful misconduct or gross negligence.
10.09. Rate Provision. It is not the intention of any party to any
Loan Papers to make an agreement violative of the Laws of any applicable
jurisdiction relating to usury. In no event shall the Borrower or any other
Person be obligated to pay any amount in excess of the Maximum Amount. If
Administrative Agent or any Lender ever receives, collects or applies, as
interest, any such excess, such amount which would be excessive interest shall
be deemed a partial repayment of principal and treated hereunder as such, and
if principal is paid in full, any remaining excess shall be paid to the
Borrower or the other Person entitled thereto. In determining whether or not
the interest paid or payable, under any specific contingency, exceeds the
Maximum Amount, each of the Borrower, the Parent or any Restricted Subsidiary,
Administrative Agent and each Lender shall, to the maximum extent permitted
under Applicable
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Law, (a) characterize any nonprincipal payment as an expense, fee or premium
rather than as interest, (b) exclude voluntary prepayments and the effect
thereof, and (c) amortize, prorate, allocate and spread in equal parts, the
total amount of inter est throughout the entire contemplated term of the
Obligations so that the interest rate is uniform throughout the entire term of
the Obligations; provided that if the Obligations are paid and performed in
full prior to the end of the full contemplated term thereof, and if the
interest received for the actual period of existence thereof exceeds the
Maximum Amount, Administrative Agent or Lenders, as appropriate, shall refund
to the Borrower the amount of such excess or credit the amount of such excess
against the total principal amount owing, and, in such event, neither
Administrative Agent nor any Lender shall be subject to any penalties provided
by any Laws for contracting for, charging or receiving interest in excess of
the Maximum Amount. This Section 10.09 shall control every other provision of
all agreements among the parties to the Loan Papers pertaining to the
transactions contemplated by or contained in the Loan Papers.
10.10. Severability. If any provision of any Loan Papers is held to be
illegal, invalid or unenforceable under present or future Laws during the term
thereof, such provision shall be fully severable, the appropriate Loan Paper
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part thereof, and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance therefrom.
Furthermore, in lieu of such illegal, invalid or unenforceable provision there
shall be added automatically as a part of such Loan Paper a legal, valid and
enforceable provision as similar in terms to the illegal, invalid or
unenforceable provision as may be possible.
10.11. Exceptions to Covenants. Neither the Borrower, nor the Parent,
nor any Restricted Subsidiary shall be deemed to be permitted to take any
action or to fail to take any action that is permitted as an exception to any
covenant in any Loan Papers, or that is within the permissible limits of any
covenant, if such action or omission would result in a violation of any other
covenant in any Loan Papers.
10.12. Counterparts. This Agreement and the other Loan Papers may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
10.13. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND ALL OTHER LOAN PAPERS SHALL BE DEEMED TO BE
CONTRACTS MADE IN DALLAS, TEXAS AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO
CONFLICT OF LAWS) AND THE UNITED STATES OF AMERICA. WITHOUT EXCLUDING ANY OTHER
JURISDICTION AND NOT AS A LIMITATION OF SECTION 10.14 HEREOF, THE BORROWER
AGREES THAT THE STATE AND FEDERAL COURTS OF TEXAS
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LOCATED IN DALLAS, TEXAS, WILL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION
HEREWITH. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BORROWER HEREBY WAIVES
ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM
IN TORT, CONTRACT, EQUITY OR OTHERWISE) ARISING UNDER OR RELATING TO THIS
AGREEMENT, THE OTHER LOAN PAPERS OR ANY RELATED MATTERS AND AGREES THAT ANY
SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
(b) THE BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY LEGAL PROCESS
UPON IT. THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE UPON IT BY
REGISTERED MAIL (RETURN RECEIPT REQUESTED) DIRECTED TO THE BORROWER AT ITS
ADDRESS DESIGNATED FOR NOTICE UNDER THIS AGREEMENT, AND SERVICE SO MADE SHALL
BE DEEMED TO BE COMPLETED FIVE BUSINESS DAYS AFTER DEPOSIT IN THE UNITED STATES
MAIL. NOTHING IN THIS SECTION 10.13 SHALL AFFECT THE RIGHT OF ADMINISTRATIVE
AGENT OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
10.14. ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENT OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
10.15. Joint and Several Obligations. The Borrower and the Lenders
agree that the obligations and duties of the Borrower hereunder and under the
Loan Papers shall be joint and several in all instances.
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IN WITNESS WHEREOF, this Credit Agreement is executed as of the date
first set forth above.
THE BORROWER:
WORLD ACCESS HOLDINGS, INC.
By:
------------------------------------------
Its:
------------------------------------------
TELCO SYSTEMS, INC.
By:
------------------------------------------
Its:
------------------------------------------
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ADMINISTRATIVE AGENT:
NATIONSBANK, N.A., as Administrative Agent
----------------------------------------------
By:
------------------------------------------
Its:
------------------------------------------
SYNDICATION AGENT:
FLEET NATIONAL BANK, as Syndication Agent
----------------------------------------------
By:
------------------------------------------
Its:
------------------------------------------
DOCUMENTATION AGENT:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., as Documentation
Agent
----------------------------------------------
By:
------------------------------------------
Its:
------------------------------------------
----------------------------------------------
By:
------------------------------------------
Its:
------------------------------------------
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LENDERS:
NATIONSBANK, N.A., individually as Lender
Specified Percentage: 46.6666666666%
By:
-----------------------------------
Its:
-----------------------------------
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FLEET NATIONAL BANK, individually as Lender
Specified Percentage: 33.3333333333%
By:
--------------------------------------
Its:
--------------------------------------
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HAMILTON BANK, N.A., individually as Lender
Specified Percentage: 13.3333333333%
By:
-------------------------------------
Its:
-------------------------------------
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC., individually as
Lender
Specified Percentage: 20.0000000000%
By:
------------------------------------
Its:
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