Exhibit 10.1
FORBEARANCE AGREEMENT
FORBEARANCE AGREEMENT, dated as of March 16, 2005 (this "Agreement"),
among (1) McLeodUSA Incorporated, a Delaware corporation (the "Borrower"), (2)
each of the Subsidiaries of the Borrower listed on Schedule I hereto (the
"Subsidiary Guarantors"), (3) the financial institutions named on the
signature pages hereto (together with their respective successors and assigns,
the "Participant Lenders") and (4) JPMorgan Chase Bank, N.A., as agent for the
Lenders (the "Administrative Agent").
WITNESSETH:
A. WHEREAS, the Borrower, certain Participant Lenders, the
Administrative Agent and certain other financial institutions are parties to a
Credit Agreement dated as of May 31, 2000 (as amended, the "2000 Credit
Agreement");
B. WHEREAS, the Borrower, certain Participant Lenders, the
Administrative Agent and certain other financial institutions are parties to a
Credit Agreement dated as of April 16, 2002 (as amended, the "2002 Credit
Agreement," together with the 2000 Credit Agreement, the "Credit Agreements");
C. WHEREAS, the Subsidiary Guarantors and JPMorgan Chase Bank, N.A.,
as Collateral Agent for the Secured Parties, are parties to a Subsidiary
Guarantee Agreement dated as of May 31, 2000, as amended and restated as of
April 16, 2002 (the "Guarantee Agreement");
D. WHEREAS, the Borrower and the Subsidiary Guarantors have (i)
advised the Participant Lenders they intend to retain as an officer of the
Borrower a person reasonably acceptable to the Participant Lenders with the
requisite expertise and scope of duties to validate and provide information
regarding the Borrower and its Subsidiaries to the Lenders, prospective buyers
and other parties, and to assist the Borrower in developing strategies
relating to any restructuring or other strategic transactions (the
"Restructuring Officer") and (ii) proposed a restructuring plan that is under
discussion with the Participant Lenders (as such plan may be modified, the
"Plan");
E. WHEREAS, the Borrower has advised the Administrative Agent and the
Lenders that the Specified Defaults (as defined in section 1(b) below),
including, without limitation, the failure to make scheduled amortization
payments under the Credit Agreements and interest payments under the 2000
Credit Agreement, will be occurring during the Forbearance Period (as defined
in section 1(a) below); and
F. WHEREAS, in order to permit completion of the negotiation of the
Plan and exploration of other possible strategic transactions, the Borrower
and the Subsidiary Guarantors have asked the Participant Lenders, and the
Participant Lenders are willing, to forbear from exercising certain
default-related remedies against the Borrower and the Subsidiary Guarantors on
account of the Specified Defaults for a limited period of time and upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Defined Terms. Unless otherwise specifically defined
herein, each term used herein which is defined in the Credit Agreements has
the meaning assigned to such term in the Credit Agreements. As used in this
Agreement, the following terms have the meanings specified below:
(a) "Forbearance Period" means the period beginning on the date
hereof and ending on the earliest to occur of (any such occurrence being a
"Termination Event"):
(i) May 23, 2005;
(ii) the occurrence of any Event of Default other than a
Specified Default;
(iii) any holder of Indebtedness or other obligations of $7
million or more of the Borrower or any of its Subsidiaries shall take
any action to collect or enforce any claim or to create or enforce
any lien against the Borrower or any of its Subsidiaries, excluding
the making of a demand or the assertion of a claim by a vendor or
customer that is disputed in good faith by the Borrower or such
Subsidiary in the ordinary course of business and with respect to
which such vendor or customer has not obtained a lien or otherwise
obtained the ability to collect or enforce such claim; and
(iv) a breach of any term, condition or representation
contained in this Agreement by the Borrower or the Subsidiary
Guarantors.
(b) "Specified Defaults" means existing or anticipated Events of
Default, as listed in Schedule II hereto.
Section 2. Acknowledgements and Undertakings.
(a) The Borrower and the Subsidiary Guarantors agree and acknowledge
that the Specified Defaults will occur during the Forbearance Period and that
certain of the Specified Defaults will constitute material Events of Default.
(b) In addition to the information required to be furnished under the
Loan Documents to the Administrative Agent and the Lenders (and without
prejudice to sections 5.01 or any other provision of the Credit Agreements),
the Borrower shall, as promptly as practicable, provide to the Administrative
Agent any information reasonably requested by the Administrative Agent or the
Lenders. Without limiting the generality of the foregoing, the Borrower shall
promptly provide to the Administrative Agent, in a form acceptable to the
Administrative Agent,
(i) on Tuesday of each week, a detailed forecast of receipts
and disbursements for the Borrower and the Subsidiary Guarantors
providing, on a weekly basis, the Borrower's good faith estimate of
projected receipts and disbursements for the 13 weeks commencing with
the immediately following week, together with a reconciliation of
such forecast against the forecast delivered the previous week and a
reasonably detailed explanation of any variance between the current
forecast and such previously delivered forecast;
(ii) not later than the tenth day following the end of each
calendar month, an operational report, including management's good
faith estimate of receipts and disbursements for such month, the cash
balances of the Borrower and Subsidiary Guarantors as of the end of
such calendar month, and an analysis of performance against projected
performance as set forth in the phased business plan dated March 9,
2005 previously delivered to the Participant Lenders;
(iii) on request of the Administrative Agent, and in any
event on Monday of each week, a written update addressed to the
financial advisor of the Administrative Agent regarding the status of
the Borrower's efforts to sell all or any portion of its business,
including, without limitation, a list of all contacts made with
potential purchasers (including the identities of those contacted and
the dates of such contacts), copies (if in writing) or descriptions
(if not in writing) of any proposals, offers or indications of
interest received by the Borrower or its attorneys or financial
advisors, and any responses thereto by the Borrower or any such
attorney or financial advisor; and
(iv) direct access to the officers and employees, and books
and records of the Borrower and its Subsidiaries (including the
Restructuring Officer retained by the Borrower) to obtain such
information as the Participant Lenders deem reasonably necessary to
evaluate, negotiate and implement any restructuring plan and to
verify and analyze to the reasonable satisfaction of the Participant
Lenders the matters referred to in subparagraphs (i), (ii) and (iii)
above.
(c) As promptly as possible, and, in any event, not later than March
31, 2005, the Borrower shall retain (and identify to the Administrative Agent)
the Restructuring Officer. The scope of the Restructuring Officer's engagement
shall be reasonably acceptable to the Participant Lenders. From and after such
retention, the Restructuring Officer shall continue to be actively employed by
the Borrower at all times during the Forbearance Period and shall have direct
access to all information, personnel and other resources necessary to the
performance of his or her duties.
(d) The Borrower shall make all scheduled interest payments under the
2002 Credit Agreement at the non-default contract rate.
(e) On or prior to the Forbearance Effective Date (as defined in
section 12 below), the Borrower shall pay to the Administrative Agent an
advance of $1.5 million (the "Advance") on account of the Borrower's
obligations to pay expenses and other amounts under sections 9.03 of the
Credit Agreements. The Administrative Agent shall be entitled to pay such
amounts as they come due, including, without limitation, (i) the reasonable
fees and expenses of counsel and financial advisors provided for in such
sections and (ii) travel and other incidental expenses of Lenders actively
participating with the Administrative Agent in restructuring discussions with
the Borrower. The Borrower shall from time to time make further advances to
the Administrative Agent, upon demand (and in any event within three business
days), to restore the balance of the Advance held by the Administrative Agent
to $1.5 million.
(f) The Borrower shall furnish to the Administrative Agent prompt
written notice of the occurrence of a Termination Event.
(g) The Borrower and the Subsidiary Guarantors acknowledge and agree
that, under the Credit Agreements, as amended, they are not currently entitled
to request any new Loans or Letters of Credit.
Section 3. Forbearance.
(a) The Participant Lenders agree that until the expiration of the
Forbearance Period, the Participant Lenders will temporarily forbear (subject
to the terms hereof) from the exercise of their default-related remedies under
the Credit Agreements, Loan Documents or otherwise, against the Borrower and
the Subsidiary Guarantors solely to the extent the availability of such
remedies arises exclusively from the Specified Defaults; provided that the
Borrower and the Subsidiary Guarantors shall comply during the Forbearance
Period with all provisions, limitations, restrictions or prohibitions that
would otherwise be effective or applicable under any of the Loan Documents
during the continuance of any Default or Event of Default; provided further
that the agreement of the Participant Lenders temporarily to forbear shall not
apply to nor preclude any remedy available to the Administrative Agent or the
Lenders in connection with any proceeding commenced under any bankruptcy or
insolvency law, including without limitation, to any relief in respect of
adequate protection or relief from any stay imposed under such law.
(b) Upon a Termination Event, the agreement of the Participant
Lenders hereunder to forbear from exercising their default-related remedies
shall immediately terminate without the requirement of any demand,
presentment, protest or notice of any kind, all of which the Borrower and the
Subsidiary Guarantors hereby waive. The Borrower and the Subsidiary Guarantors
agree that the Administrative Agent and the Lenders may at any time thereafter
proceed to exercise any and all of their respective rights and remedies under
any or all of the Loan Documents and/or applicable law, including, without
limitation, their respective rights and remedies in connection with any or all
of the Defaults and Events of Default, including, without limitation, the
Specified Defaults.
(c) For the avoidance of doubt, nothing herein limits the right of
the Administrative Agent or the Lenders, including during the Forbearance
Period, to take any action to preserve or exercise rights or remedies against
parties other than the Borrower and the Subsidiary Guarantors ("Third Party
Rights"). For purposes of the foregoing, the Borrower and the Subsidiary
Guarantors acknowledge and agree that execution and delivery of this Agreement
shall constitute the making of any necessary demand or the giving of any
necessary notice for purposes of preserving and/or permitting the exercise of
any such Third Party Rights of the Administrative Agent and the Lenders.
(d) Execution of this Agreement constitutes a direction by the
Participant Lenders that the Administrative Agent act in accordance with its
terms. Each Participant Lender agrees that, notwithstanding anything to the
contrary in the Credit Agreements, the Administrative Agent shall not be
required to act if directed against the Borrower or the Subsidiary Guarantors
if such action is contrary to the terms of this Agreement.
(e) The Borrower and the Subsidiary Guarantors acknowledge and agree
that the agreement of the Participant Lenders hereunder to forbear from
exercising their default-related remedies with respect to the Specified
Defaults shall not constitute a waiver of such Specified Defaults and that the
Lenders expressly reserve all rights and remedies that the Administrative
Agent and the Lenders now or may in the future have under any or all of the
Loan Documents and/or applicable law in connection with all Defaults and
Events of Default (including without limitation the Specified Defaults).
Section 4. Interest Rate During the Forbearance Period.
(a) The parties acknowledge that upon the occurrence of an Event of
Default, the Lenders have the right to accelerate the due date of the Loans
under the Credit Agreements. In consideration of the forbearance provided
hereunder, and notwithstanding any failure to accelerate the due date of the
Loans, from and after the occurrence of any Event of Default (including any
Specified Defaults), principal of and interest on the Loans and all fees and
other amounts payable by the Borrower shall bear interest at the default rate,
as set forth in sections 2.13(c) of the Credit Agreements.
(b) Notwithstanding the foregoing, the Participant Lenders are hereby
advised that, during the Forbearance Period (i) the Borrower does not intend
to pay interest in cash on a current basis under the 2000 Credit Agreement,
and (ii) the Borrower intends to pay interest in cash under the 2002 Credit
Agreement only at the pre-default rate.
(c) Any interest accrued under the Credit Agreements that has not
been paid in cash shall compound on each Interest Payment Date until paid.
Section 5. Reference to and Effect upon the Credit Agreements.
(a) Except as expressly set forth herein, all terms, conditions,
covenants, representations and warranties contained in the Credit Agreements,
and any other Loan Document, and all rights of the Administrative Agent and
the Lenders and all obligations of the Borrower and the Subsidiary Guarantors
thereunder, shall remain in full force and effect. The Borrower and the
Subsidiary Guarantors hereby confirm that the Credit Agreements, and the other
Loan Documents are in full force and effect.
(b) Except as expressly provided herein, nothing contained in this
Agreement and no action by, or inaction on the part of, any Lender or the
Administrative Agent shall, or shall be deemed to, directly or indirectly (i)
constitute a consent to or waiver of any past, present or future violations of
any provisions of the Credit Agreements, or any other Loan Document, (ii)
amend, modify or operate as a waiver of any provision of the Credit
Agreements, or any other Loan Document, except as expressly set forth herein,
of any right, power or remedy of the Administrative Agent or any Lender
thereunder or (iii) constitute a course of dealing or other basis for altering
any obligations of the Borrower under the Loan Documents, or any other
contract or instrument.
(c) This Agreement shall constitute a Loan Document.
Section 6. Representations and Warranties. To induce the
Administrative Agent and the Participant Lenders to execute and deliver this
Agreement, the Borrower and the Subsidiary Guarantors represent and warrant
that:
(a) The execution, delivery and performance by the Borrower and the
Subsidiary Guarantors of this Agreement have been duly authorized by all
necessary corporate action. This Agreement constitutes the legal, valid and
binding obligations of the Borrower and the Subsidiary Guarantors, enforceable
against the Borrower and the Subsidiary Guarantors in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability.
(b) No approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, the Borrower or the Subsidiary Guarantors of this
Agreement.
(c) As of the Forbearance Effective Date (as defined in section 12
below), no Defaults or Events of Default exist, other than the Specified
Defaults.
Section 7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
Section 8. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
Section 9. Severability. The invalidity, illegality or
unenforceability of any provision in or obligation under this Agreement in any
jurisdiction shall not affect or impair the validity, legality or
enforceability of the remaining provisions or obligations under this Agreement
or of such provision or obligation in any other jurisdiction.
Section 10. Further Assurances. The Borrower and the Subsidiary
Guarantors agree to take all further actions and execute all further documents
as the Administrative Agent may from time to time reasonably request to carry
out the transactions contemplated by this Agreement.
Section 11. Notices. All notices, requests and demands to or upon
the respective parties hereto shall be given in accordance with sections 9.01
of the Credit Agreements.
Section 12. Effectiveness. This Agreement shall become effective as
of the date hereof on the date (the "Forbearance Effective Date") when the
following conditions are satisfied:
(a) the Administrative Agent shall have received from the Borrower,
the Subsidiary Guarantors, and the Required Lenders under each Credit
Agreement a counterpart hereof signed by such party or facsimile or other
written confirmation (in form satisfactory to the Administrative Agent) that
such party has signed a counterpart hereof;
(b) the Administrative Agent shall have received certificates of the
chief financial officer of the Borrower and the Subsidiary Guarantors
certifying that, to the best of his knowledge, the representations and
warranties made by the Borrower and the Subsidiary Guarantors pursuant to
section 6 of this Agreement are true and correct on and as of the date of this
Agreement; and
(c) the Borrower shall have paid to the Administrative Agent in full
the Advance referred to in section 2(f) above.
Section 13. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 14. No Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of the Borrower, the Subsidiary
Guarantors, the Administrative Agent and the Lenders and their respective
successors and assigns; provided that the Lenders (other than the Participant
Lenders and their respective successors and assigns) shall not be bound by the
forbearance granted hereunder. No Person other than the parties hereto and any
other Lender and their successors and assigns shall have any rights hereunder
or be entitled to rely on this Agreement, and all third-party beneficiary
rights (other than the rights of any other Lender and its successors and
assigns) are hereby expressly disclaimed.
Section 15. Limitation on Assignments. In addition to, and without
limiting the requirements set forth in sections 9.04 of the Credit Agreements,
each Participant Lender agrees that it will not assign all, or any ratable
part, of its Loans, Commitments or other rights or obligations under the Loan
Documents to any Person (other than a Participant Lender) unless such Person
shall have agreed to be bound by this Agreement (including the forbearance
granted hereunder). Each Participant Lender agrees that, notwithstanding
anything to the contrary in the Credit Agreements, the Administrative Agent
shall be entitled to withhold its consent to, and shall not be required to
give effect to, any purported assignment of such Participant Lender's Loans,
Commitments or other rights or obligations under the Loan Documents if the
conditions set forth in the previous sentence are not satisfied.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
MCLEODUSA INCORPORATED
By: /s/ G. Kenneth Burckhardt
--------------------------------
Name: G. Kenneth Burckhardt
Title: Executive Vice President
and Chief Financial Officer
MCLEODUSA HOLDINGS, INC.
By: /s/ G. Kenneth Burckhardt
----------------------------------
Name: G. Kenneth Burckhardt
Title: Executive Vice President and
Chief Financial Officer
MCLEODUSA TELECOMMUNICATIONS SERVICES, INC.
By: /s/ G. Kenneth Burckhardt
----------------------------------
Name: G. Kenneth Burckhardt
Title: Executive Vice President and
Chief Financial Officer
MCLEODUSA NETWORK SERVICES, INC.
By: /s/ G. Kenneth Burckhardt
------------------------------------
Name: G. Kenneth Burckhardt
Title: Executive Vice President and
Chief Financial Officer
MCLEODUSA PURCHASING L.L.C.
By: /s/ G. Kenneth Burckhardt
------------------------------------
Name: G. Kenneth Burckhardt
Title: Executive Vice President and
Chief Financial Officer
MCLEODUSA INFORMATION SERVICES, INC.
By: /s/ G. Kenneth Burckhardt
-------------------------------------
Name: G. Kenneth Burckhardt
Title: Executive Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as Administrative
Agent
By: /s/ Susan E. Atkins
------------------------------------
Name: Susan E. Atkins
Title: Managing Director
JPMorgan Chase Bank NA
-----------------------------------------
Print Name of Lender
By: /s/ Susan E. Atkins
--------------------------------------
Name: Susan E. Atkins
Title: Managing Director
Credit Suisse First Boston
----------------------------------------
Print Name of Lender
By: /s/ Didier Siffer
------------------------------------
Name: Didier Siffer
Title: Director
Credit Suisse First Boston
-----------------------------------------
Print Name of Lender
By: /s/ Michael A. Criscito
--------------------------------------
Name: Michael A. Criscito
Title: Managing Director
Bayerische Hypo-und Vereinsbank AG
------------------------------------------
Print Name of Lender
By: /s/ Kimberly Sousa
---------------------------------------
Name: Kimberly Sousa
Title: Director
Bayerische Hypo-und Vereinsbank AG
-------------------------------------------
Print Name of Lender
By: /s/ Salvatore Esposito
----------------------------------------
Name: Salvatore Esposito
Title: Managing Director
Banc of America Strategic Solutions, Inc.
--------------------------------------------
Print Name of Lender
By: /s/ Thomas Biaggi
----------------------------------------
Name: Thomas Biaggi
Title: Senior Vice President
Commonwealth of Massachusetts Pension
Reserves Investment Managemetn Board
Pension Investment Committee of General
Motors for General Motors Employees
Domestic Group Penion Trust
Fidelity Management Trust Company, as
Investment Advisor
-------------------------------------------
Print Name of Lender
By: /s/ Geoffrey Johnson
---------------------------------------
Name: Geoffrey Johnson
Title: Vice President
Fidelity Advisor Series I: Fidelity Advisor
Leveraged Company Stock Fund
Fidelity Securities Fund: Fidelity Leveraged
Company Stock Fund
Fidelity Advisor Series II: Fidelity Advisor
High Income Advantage Fund
--------------------------------------------
Print Name of Lender
By: /s/ John H. Costello
--------------------------------------
Name: John H. Costello
Title: Assistant Treasurer
Jefferies & Co., Inc.
--------------------------------------------
Print Name of Lender
By: /s/ Harrison A. Bubrosky
---------------------------------------
Name: Harrison A. Bubrosky
Title: Executive Vice President
Banc of America Securities
LLC as Agent for Bank of
America, N.A.
------------------------------------------
Print Name of Lender
By: /s/ Toby Gilbert
-------------------------------------
Name: Toby Gilbert
Title: Associate
Theodore J. Forstmann
---------------------------------------
Pint Name of Lender
By: /s/ Theodore J. Forstmann
----------------------------------
Name:
Title:
SCHEDULE I
Subsidiary Guarantors
1. McLeodUSA Holdings, Inc.
2. McLeodUSA Telecommunications Services, Inc.
3. McLeodUSA Network Services, Inc.
4. McLeodUSA Purchasing L.L.C.
5. McLeodUSA Information Services, Inc.
SCHEDULE II
SPECIFIED DEFAULTS
1. Section 2.05(j). Any Default or Event of Default occurring under
either Credit Agreement as a result of the failure by the Borrower to
deposit cash in an account with the Administrative Agent pursuant to
Section 2.05(j) of such Credit Agreement.
2. Section 2.09. Any Default or Event of Default occurring under the
2000 Credit Agreement as a result of the failure by the Borrower to
pay to the Administrative Agent for the account of each Lender when
due the then unpaid principal amount of each Term Loan of such Lender
as provided in Section 2.10 of the 2000 Credit Agreement.
3. Section 2.10. Any Default or Event of Default occurring under the
2000 Credit Agreement as a result of the failure by the Borrower to
repay Term Loans on the dates set forth in Section 2.10 of the 2000
Credit Agreement.
4. Section 2.13. (a) Any Default or Event of Default occurring under the
2000 Credit Agreement as a result of the failure by the Borrower to
pay accrued interest on the dates and/or in the amounts specified in
Section 2.13 of the 2000 Credit Agreement.
(b) Any Default or Event of Default occurring under the 2002
Credit Agreement as a result of the failure by the Borrower to pay on
a current cash pay basis that portion of the interest representing
the default rate interest required by Section 2.13(c) of the 2002
Credit Agreement.
5. Section 5.01(a). Any Default or Event of Default occurring under
either Credit Agreement as a result of the failure by the Borrower to
furnish to the Administrative Agent and each Lender financial
statements reported on by independent public accountants of
nationally recognized standing without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of audit, as required by Section 5.01(a) of such
Credit Agreement.
6. Section 5.01(d). Any Default or Event of Default occurring under
either Credit Agreement as a result of the failure by the Borrower to
furnish to the Administrative Agent and each Lender a certificate of
accounting firm as required by Section 5.01(d) of such Credit
Agreement.
7. Section 5.01(e). Any Default or Event of Default occurring under
either Credit Agreement as a result of the failure by the Borrower to
furnish to the Administrative Agent and each Lender a budget as
required by Section 5.01(e) of such Credit Agreement.
8. Section 5.02(a). Any Default or Event of Default occurring under
either Credit Agreement as a result of the failure by the Borrower to
furnish to the Administrative Agent and each Lender prompt written
notice of any Specified Default.
9. Section 5.02(c). Any Default or Event of Default occurring under
either Credit Agreement as a result of the failure by the Borrower to
furnish to the Administrative Agent and each Lender prompt written
notice of any development occurring after the Forbearance Effective
Date as a consequence of the public disclosure of this Forbearance
Agreement or any of the Specified Defaults that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
10. Section 6.13. Any Default or Event of Default occurring after the
Forbearance Effective Date under either Credit Agreement as a result
of the failure by the Borrower to satisfy the requirements of Section
6.13 of such Credit Agreement.
11. Section 6.17. Any Default or Event of Default occurring after the
Forbearance Effective Date under either Credit Agreement as a result
of the failure by the Borrower to satisfy the requirements of Section
6.17 of such Credit Agreement.
12. Article VII, clause (a). Any Default or Event of Default occurring
under either Credit Agreement of the type described in clause (a) of
Article VII of such Credit Agreement arising from the failure to make
any payment when due after the Forbearance Effective Date.
13. Article VII, clause (b). (a) Any Default or Event of Default
occurring under the 2000 Credit Agreement of the type described in
clause (b) of Article VII of such Credit Agreement arising from the
failure to pay interest when due after the Forbearance Effective
Date.
(b) Any Default or Event of Default occurring under the 2002
Credit Agreement of the type described in clause (b) of Article VII
of such Credit Agreement, but solely to the extent of the additional
interest required to be paid hereunder and pursuant to Section
2.13(c) of the 2002 Credit Agreement.
14. (a) Any Default or Event of Default occurring under the 2000 Credit
Agreement as a result of a Specified Default occurring under the 2002
Credit Agreement, or (b) any Default or Event of Default occurring
under the 2002 Credit Agreement as a result of a Specified Default
occurring under the 2000 Credit Agreement.
15. Any Default or Event of Default occurring under either Credit
Agreement as a result of the failure by any Subsidiary Loan Party to
make any required payments under the Subsidiary Guarantee Agreement
during the Forbearance Period as a consequence of another Specified
Default.