EXECUTION COPY
$200,000,000
CREDIT AGREEMENT
Dated as of August 12, 1999
Among
ICG EQUIPMENT, INC.
ICG NETAHEAD, INC.
as Borrowers
and
ICG SERVICES, INC.
as Parent
THE INITIAL LENDERS AND THE INITIAL ISSUING BANK
as Initial Lenders and Initial Issuing Bank
and
ROYAL BANK OF CANADA
as Administrative Agent and Collateral Agent
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Sole Book-Runner and Lead Arranger
and
BANK OF AMERICA, N.A.
and
BARCLAYS BANK PLC
as Co-Documentation Agents
T A B L E O F C O N T E N T S
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms...................................................1
1.02. Computation of Time Periods; Other Definitional Provisions.............28
1.03. Accounting Terms.......................................................28
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Advances and the Letters of Credit.................................29
2.02. Making the Advances....................................................30
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.....32
2.04. Repayment of Advances..................................................33
2.05. Termination or Reduction of the Commitments............................35
2.06. Prepayments............................................................36
2.07. Interest...............................................................38
2.08. Fees...................................................................38
2.09. Conversion of Advances.................................................39
2.10. Increased Costs, Etc...................................................40
2.11. Payments and Computations..............................................41
2.12. Taxes..................................................................43
2.13. Sharing of Payments, Etc...............................................45
2.14. Use of Proceeds........................................................45
2.15. Defaulting Lenders.....................................................46
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
3.01. Conditions Precedent to Initial Extension of Credit....................48
3.02. Conditions Precedent to Each Borrowing and Issuance and Renewal........54
3.03. Determinations Under Section 3.01......................................55
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower.........................55
Section Page
ARTICLE V
COVENANTS OF THE LOAN PARTIES
5.01. Affirmative Covenants..................................................61
5.02. Negative Covenants.....................................................66
5.03. Reporting Requirements.................................................72
5.04. Financial Covenants....................................................76
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default......................................................79
6.02. Actions in Respect of the Letters of Credit upon Default...............85
ARTICLE VII
PARENT GUARANTY
7.01. Guaranty...............................................................86
7.02. Guaranty Absolute......................................................86
7.03. Waiver.................................................................87
7.04. Subrogation............................................................87
ARTICLE VIII
THE AGENTS
8.01. Authorization and Action...............................................88
8.02. Agents' Reliance, Etc..................................................88
8.03. Agents and Affiliates..................................................88
8.04. Lender Party Credit Decision...........................................89
8.05. Indemnification........................................................89
8.06. Successor Agents.......................................................90
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc........................................................91
9.02. Notices, Etc...........................................................91
9.03. No Waiver; Remedies....................................................92
ii
Section Page
9.04. Costs and Expenses.....................................................92
9.05. Right of Set-off.......................................................93
9.06. Binding Effect.........................................................94
9.07. Assignments and Participations.........................................94
9.08. Execution in Counterparts..............................................97
9.09. No Liability of the Issuing Bank.......................................97
9.10. Confidentiality........................................................98
9.11. Release of Collateral..................................................98
9.12. Jurisdiction, Etc......................................................98
9.13. Governing Law..........................................................98
9.14. Waiver of Jury Trial...................................................99
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Subsidiary Guarantors
Schedule 4.01(a) - Equity Investors
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4,01(q) - Tax Matters
Schedule 4.01(s) - Existing Debt
Schedule 4.01(t) - Liens
Schedule 4.01(u) - Owned Real Property
Schedule 4.01(v) - Leased Real Property
Schedule 4.01(w) - Investments
Schedule 4.01(x) - Intellectual Property
Schedule 4.01(y) - Material Contracts
EXHIBITS
Exhibit A-1 - Form of Tranche A Term Note
Exhibit A-2 - Form of Tranche B Term Note
Exhibit A-3 - Form of Working Capital Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Subsidiary Guaranty
Exhibit F - Form of Solvency Certificate
Exhibit G - Form of Opinion of Counsel to the Loan Parties
Exhibit H - Form of Opinion of Local Counsel
Exhibit I - Form of Borrowing Base Certificate
iii
EXECUTION COPY
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of August 12, 1999, among ICG Equipment, Inc., a
Colorado corporation ("ICG Equipment"), ICG NetAhead, Inc., a Delaware
corporation ("ICG NetAhead" and, together with ICG Equipment, the "Borrowers"),
ICG Services, Inc., a Delaware corporation (the "Parent"), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof as the Initial Lenders (the "Initial Lenders") and the bank listed on the
signature pages hereof as the Initial Issuing Bank (the "Initial Issuing Bank"
and, together with the Initial Lenders, the "Initial Lender Parties"), Morgan
Stanley Senior Funding, Inc. ("Morgan Stanley"), as sole book-runner and lead
arranger (the "Lead Arranger"), Royal Bank of Canada, as collateral agent
(together with any successor collateral agent appointed pursuant to Article VII,
the "Collateral Agent") and as administrative agent (together with any successor
administrative agent appointed pursuant to Article VII, the "Administrative
Agent") for the Lender Parties (as hereinafter defined)) and Bank of America,
N.A. and Barclays Bank Plc, as co-documentation agents (the "Co-Documentation
Agents" and, together with the Lead Arranger and the Collateral Agent, the
"Agents").
PRELIMINARY STATEMENTS:
(1) Each Borrower has requested that the Lenders make Advances (as
hereinafter defined) to such Borrower on the terms and conditions set forth
herein.
(2) The Lenders are willing to make Advances to each Borrower, on the terms
and subject to the conditions set forth herein.
(3) Each Borrower wishes to enter into the transactions contemplated hereby
for significant commercial purposes associated with its ongoing operations
(including, without limitation, the Internet Service Business and the
Telecommunications Business) (each, as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent as the Administrative Agent shall specify in writing
to the Lender Parties.
"Advance" means a Tranche A Term Advance, a Tranche B Term Advance, a
Working Capital Advance or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives Association, Inc. (the "Master Agreement"), the amount, if
any, that would be payable by any Loan Party or any of its Subsidiaries to
its counterparty to such Hedge Agreement, as if (i) such Hedge Agreement
was being terminated early on such date of determination, (ii) such Loan
Party or Subsidiary was the sole "Affected Party", and (iii) the
Administrative Agent was the sole party determining such payment amount
(with the Administrative Agent making such determination pursuant to the
provisions of the form of Master Agreement); or (b) in the case of a Hedge
Agreement traded on an exchange, the mark-to-market value of such Hedge
Agreement, which will be the unrealized loss on such Hedge Agreement to the
Loan Party or Subsidiary of a Loan Party party to such Hedge Agreement
determined by the Administrative Agent based on the settlement price of
such Hedge Agreement on such date of determination, or (c) in all other
cases, the mark-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of
a Loan Party party to such Hedge Agreement determined by the Administrative
Agent as the amount, if any, by which (i) the present value of the future
cash flows to be paid by such Loan Party or Subsidiary exceeds (ii) the
present value of the future cash flows to be received by such Loan Party or
Subsidiary pursuant to such Hedge Agreement; capitalized terms used and not
otherwise defined in this definition shall have the respective meanings set
forth in the above described Master Agreement.
"Applicable Lending Office" means, with respect to each Lender Party,
such Lender Party's Domestic Lending Office in the case of a Base Rate
Advance and such Lender Party's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance.
"Applicable Margin" means, at any time, (a) in respect of the Tranche
A Term Facility and the Working Capital Facility, (i) for the first six
calendar months following the Effective Date, 3.125% in the case of
Eurodollar Rate Advances, and 2.125% in the case of Base Rate Advances, and
(ii) thereafter, a
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percentage per annum determined by reference to the ICG Total Leverage
Ratio as set forth below and (b) in respect of the Tranche B Term Facility,
3.500% in the case of Eurodollar Rate Advances, and 2.500% in the case of
Base Rate Advances.
ICG Total Leverage Ratio Base Rate Advances Eurodollar Rate Advances
> 10:1 2.125% 3.125%
< 10:1, and > 7.5:1 1.750% 2.750%
-
< 7.5:1, and > 5.0:1 1.500% 2.500%
- -
< 5.0:1 1.250% 2.250%
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the ICG Total Leverage Ratio in effect from time to time and
the Applicable Margin for each Eurodollar Rate Advance shall be determined
by reference to the ratio in effect on the first day of each Interest
Period for such Advance; provided, however, that no change in the
Applicable Margin shall be effective until three Business Days after the
date on which the Administrative Agent receives the financial statements
required to be delivered pursuant to Section 5.03(b) or (c), as the case
may be, and a certificate of the Chief Financial Officer of each Borrower
demonstrating the ICG Total Leverage Ratio.
"Appropriate Borrower" means (a) with respect to any Borrowing, the
Borrower named in the Notice of Borrowing pursuant to Section 2.02(a)(i)
for such Advance; and (b) with respect to any Letter of Credit, the
Borrower named in the Notice of Issuance pursuant to Section 2.03(a) for
such Letter of Credit.
"Appropriate Borrower's Account" means (a) with respect to ICG
Equipment, the account of ICG Equipment as ICG Equipment shall specify in
writing to the Administrative Agent and (b) with respect to ICG NetAhead,
the account of ICG NetAhead as ICG NetAhead shall specify in writing to the
Administrative Agent.
"Appropriate Lender" means, at any time, with respect to (a) any of
the Tranche A Term Facility, Tranche B Term Facility and Working Capital
Facility, a Lender that has a Commitment with respect to such Facility at
such time, and (b) the Letter of Credit Facility, (i) the Issuing Bank and
(ii) if the other Working Capital Lenders have made Letter of Credit
Advances pursuant to Section 2.03(c) that are outstanding at such time,
each such other Working Capital Lender.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
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"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender Party and an Eligible Assignee, and accepted by the
Administrative Agent, in accordance with Section 9.07 and in substantially
the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Royal Bank of
Canada in New York, New York, from time to time, as its base or prime
rate; and
(b) 2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"Borrowers" has the meaning specified in the recital of parties to
this Agreement.
"Borrowing" means a Tranche A Term Borrowing, a Tranche B Term
Borrowing or a Working Capital Borrowing.
"Borrowing Base Certificate" means a certificate in substantially the
form of Exhibit I hereto, duly certified by the Chief Financial Officer of
a Borrower.
"Borrowing Base Deficiency" means, at any time, the failure of (a) the
sum of the Loan Values of the Eligible Collateral at such time to equal or
exceed the (b) sum of the aggregate principal amount of the Advances
outstanding at such time plus the aggregate Available Amount under all
Letters of Credit outstanding at such time.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period, the sum
of, without duplication, (a) all cash expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period
for equipment, fixed assets, real property, improvements or other assets,
or for replacements or substitutions therefor or additions thereto and
other tangible and intangible assets that may be capitalized under GAAP,
that have been or should be, in accordance with GAAP, reflected as
additions to property, plant or equipment on a Consolidated balance sheet
of such Person or have a useful life of more than one year plus, without
duplication, (b) the aggregate principal amount of all Debt (including
Obligations under Capitalized Leases) assumed or incurred in connection
with any such expenditures. For purposes of this definition, the purchase
4
price of equipment that is purchased simultaneously with the trade-in of
existing equipment or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount of such purchase price
less the credit granted by the seller of such equipment for the equipment
being traded in at such time or the amount of such proceeds, as the case
may be.
"Capitalized Leases" means all leases that have been or should be, in
accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning s pecified in the Security
Agreement.
"Cash Equivalents" means any of the following, to the extent owned by
each Borrower or any of its respective Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and having a
maturity of not greater than 365 days from the date of the acquisition
thereof: (a) readily marketable direct obligations of the Government of the
United States or any agency or instrumentality thereof or obligations
unconditionally guaranteed by the full faith and credit of the Government
of the United States, (b) insured certificates of deposit of or time
deposits with any commercial bank that is a Lender Party or a member of the
Federal Reserve System, issues (or the parent of which issues) commercial
paper rated as described in clause (c) below, is organized under the laws
of the United States or any State thereof and has combined capital and
surplus of at least $1 billion or (c) commercial paper in an aggregate
amount of no more than $25,000,000 per issuer outstanding at any time,
issued by any corporation organized under the laws of any State of the
United States and rated at least "Prime-1" (or the then equivalent grade)
by Moody's Investors Service, Inc. or "A-1" (or the then equivalent grade)
by Standard & Poor's, a division of The McGraw-Hill Companies, Inc.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response, Compensation
and Liability Information System maintained by the U.S. Environmental
Protection Agency.
"Change of Control" means the occurrence of any of the following: (a)
any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities
and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Interests of ICG (or other securities
convertible into such Voting Interests) representing 35% or more of the
combined voting power of all Voting Interests of ICG; or (b) (i) any Person
or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Interests of ICG (or other securities convertible
into such Voting Interests) representing 20% or more of the combined voting
power of all Voting Interests of ICG and (ii) during any period of up to 24
consecutive months, commencing before or after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors of
ICG shall cease for any reason to constitute a majority of the board of
directors of ICG, or (c) ICG shall cease to own directly or indirectly 100%
of the Equity Interests of the Parent; or (d) the Parent shall cease to own
directly or indirectly 100% of the Equity Interests of the Borrowers.
5
"Co-Documentation Agents" has the meaning specified in the recital of
parties to this Agreement.
"Collateral" means all "Collateral" referred to in the Collateral
Documents and all other property that is or is intended to be subject to
any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Collateral Agent" has the meaning specified in the recital of parties
to this Agreement.
"Collateral Documents" means Mortgages, the Security Agreement and any
other agreement that creates or purports to create a Lien in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Commitment" means a Tranche A Term Commitment, a Tranche B Term
Commitment, a Working Capital Commitment or a Letter of Credit Commitment.
"Commitment Letter" means the commitment letter, dated June 25, 1999,
between the Parent and Morgan Stanley.
"Confidential Information" means information that any Loan Party
furnishes to any Agent or any Lender Party on a confidential basis, but
does not include any such information that is or becomes generally
available to the public other than as a result of a breach by such Agent or
any Lender Party of its obligations hereunder or that is or becomes
available to such Agent or such Lender Party from a source other than the
Loan Parties that is not, to the best of such Agent's or such Lender
Party's knowledge, acting in violation of a confidentiality agreement with
a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, Capitalized Leases, dividends or other payment
Obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other than
for collection or deposit in the ordinary course of business), co-making,
discounting with recourse or sale with recourse by such Person of the
Obligation of a primary obligor, (b) the Obligation to make take-or-pay or
similar payments, if required, regardless of nonperformance by any other
party or parties to an agreement or (c) any Obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or
any property constituting direct or indirect security therefor, (ii) to
advance or supply funds (A) for the purchase or payment of any such primary
obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, assets, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the holder
of such primary obligation against loss in respect thereof. The amount of
6
any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which
such Contingent Obligation is made (or, if less, the maximum amount of such
primary obligation for which such Person may be liable pursuant to the
terms of the instrument evidencing such Contingent Obligation) or, if not
stated or determinable, the maximum reasonably anticipated liability in
respect thereof (assuming such Person is required to perform thereunder),
as determined by such Person in good faith.
"CFC" means any Person that is a "controlled foreign corporation"
pursuant to Section 957 of the Internal Revenue Code.
"Conversion", "Convert" and "Converted" each refer to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.09 or 2.10.
"Current Assets" of any Person means all assets of such Person that
would, in accordance with GAAP, be classified as current assets of a
company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a reserve
is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such Person
that by its terms is payable on demand or matures within one year after the
date of determination (excluding any Debt renewable or extendible, at the
option of such Person, to a date more than one year from such date or
arising under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
from such date), (b) all amounts of Funded Debt of such Person required to
be paid or prepaid within one year after such date and (c) all other items
(including taxes accrued as estimated) that in accordance with GAAP would
be classified as current liabilities of such Person.
"Debt" of any Person at any date of determination means, without
duplication, (a) all indebtedness of such Person for borrowed money, (b)
all Obligations of such Person for the deferred and unpaid purchase price
of property or services which is due more than 6 months after the date of
placing such property in service or taking delivery of title thereto or the
completion of such services, (other than trade payables and accrued current
liabilities incurred in the ordinary course of such Person's business), (c)
all Obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all Obligations of such Person created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations of such Person under acceptance, letter of credit or similar
facilities, (g) for the purposes of Sections 5.02(b) and 6.01(e) only, all
monetary Obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interests in such
Person or any other Person or any warrants, rights or options to acquire
such capital stock (in each case, pursuant to the terms of such Equity
Interests or capital stock) if the failure to pay such monetary obligations
allows the holders of such Equity Interests or capital stock to exercise
remedies or additional right against such Person, valued, in the case of
Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (h)
7
all Obligations of such Person in respect of Hedge Agreements, valued at
the Agreement Value thereof, (i) all Contingent Obligations of such Person
and (j) all indebtedness and other payment Obligations referred to in
clauses (a) through (i) above of another Person secured by (or for which
the holder of such Debt has an existing right, contingent or otherwise, to
be secured by) any Lien on property (including, without limitation,
accounts and contract rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of such indebtedness or
other payment Obligations.
"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a Consolidated
balance sheet of such Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to the Appropriate Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a Defaulted
Advance shall be deemed made pursuant to Section 2.15(a), the remaining
portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the same date as
the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Issuing Bank pursuant to Section 2.03(c) to purchase a portion of a
Letter of Credit Advance made by such Issuing Bank, (b) the Administrative
Agent pursuant to Section 2.02(e) to reimburse the Administrative Agent for
the amount of any Advance made by the Administrative Agent for the account
of such Lender Party, (c) any other Lender Party pursuant to Section 2.13
to purchase any participation in Advances owing to such other Lender Party
and (d) any Agent or the Issuing Bank pursuant to Section 8.05 to reimburse
such Agent or the Issuing Bank for such Lender Party's ratable share of any
amount required to be paid by the Lender Parties to such Agent or the
Issuing Bank as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to Section 2.15(b), the
remaining portion of such Defaulted Amount shall be considered a Defaulted
Amount originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in part.
"Default Termination Notice" has the meaning specified in Section
2.01(d).
"Defaulting Lender" means, at any time, any Lender Party that, at such
time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall take
any action or be the subject of any action or proceeding of a type
described in Section 6.01(f).
8
"Domestic Lending Office" means, with respect to any Lender Party, the
office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to each Borrower and the Administrative Agent.
"EBITDA" means, with respect to any Person for any period, the sum of
the following, determined on a Consolidated basis without duplication, in
accordance with GAAP: (a) net income (or net loss) of such Person and its
Subsidiaries for such period plus (b) the sum of the following (in each
case, to the extent deducted in determining net income) (i) income and
franchise tax expenses of such Person and its Subsidiaries, (ii) interest
expense of such Person and its Subsidiaries, (iii) amortization,
depreciation and other non-cash charges and (iv) any non-recurring
extraordinary losses, less (c) interest income of such Person and its
Subsidiaries and any non-recurring extraordinary gains.
"Effective Date" means the first date on which the conditions set
forth in Article III shall have satisfied.
"Eligible Assignee" means any commercial bank or financial institution
(including, without limitation, any fund that regularly invests in loans
similar to the Advances) as approved by the Administrative Agent and (so
long as no Event of Default has occurred and is continuing at the time of
such assignment) by each Borrower (such approvals not to be unreasonably
withheld); provided, however, that neither any Loan Party nor any Affiliate
of a Loan Party shall qualify as an Eligible Assignee under this
definition.
"Eligible Collateral" means, collectively, all property, plant and
equipment of the Borrowers and their respective Subsidiaries pledged under
the Collateral Documents and in which the Collateral Agent has a perfected
security interest that (i) is not subject to any Lien that is prior to the
security interests created under the Loan Documents and (ii) is related to
the Internet Service Business or the Telecommunications Business.
"Environmental Action" means any action, suit, demand, demand letter,
claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, any Environmental
Permit or Hazardous Material or arising from alleged injury or threat to
health, safety or the environment, including, without limitation, (a) by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental
or regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or guidance
relating to pollution or protection of the environment, health, safety or
natural resources, including, without limitation, those relating to the
use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
9
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equipment" means all Equipment referred to in Section 1(a) of the
Security Agreement.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected
to occur with respect to such Plan within the following 30 days; (b) the
application for a minimum funding waiver with respect to a Plan; (c) the
provision by the administrator of any Plan of a notice of intent to
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any
such notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (d) the cessation of operations at a facility of any Loan Party
or any ERISA Affiliate in the circumstances described in Section 4062(e) of
ERISA; (e) the withdrawal by any Loan Party or any 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; (f) the conditions for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to any Plan; (g) the adoption of an amendment to a Plan requiring
the provision of security to such Plan pursuant to Section 307 of ERISA; or
(h) 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
described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
10
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to
each Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) 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 U.S. Dollars at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period for a period
equal to such Interest Period (provided that, if for any reason such rate
is not available, the term "Eurodollar Rate" shall mean, for any Interest
Period for all Eurodollar Rate Advances comprising part of the same
Borrowing, 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 U.S. 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) by (b)
a percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency Liabilities
(or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Amount" has the meaning specified in Section 6.01(q).
"Excess Cash Flow" means, for any period,
(a) the sum of:
11
(i) Consolidated net income (or loss) of the Borrowers and
their Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges deducted
in arriving at such Consolidated net income (or loss) plus
(iii) if there was a net increase in Consolidated Current
Liabilities of the Borrower and their Subsidiaries during such
period, the amount of such net increase plus
(iv) if there was a net decrease in Consolidated Current
Assets (excluding cash and Cash Equivalents) of the Borrowers and
their Subsidiaries during such period, the amount of such net
decrease less
(b) the sum of:
(i) the aggregate amount of all non-cash credits included in
arriving at such Consolidated net income (or loss) plus
(ii) if there was a net decrease in Consolidated Current
Liabilities of the Borrowers and their Subsidiaries during such
period, the amount of such net decrease plus
(iii) if there was a net increase in Consolidated Current
Assets (excluding cash and Cash Equivalents) of the Borrowers and
their Subsidiaries during such period, the amount of such net
increase plus
(iv) the aggregate amount of Capital Expenditures of the
Borrowers and their respective Subsidiaries paid in cash during
such period to the extent permitted by this Agreement plus
(v) the aggregate amount of all regularly scheduled
principal payments of Funded Debt made by the Borrowers and their
respective Subsidiaries during such period plus
(vi) cash dividend payments made to the Parent by any Loan
Party to the extent such cash is applied by the Parent to pay any
amount in respect of Debt of the Parent permitted by the Loan
Documents plus
(vii) the aggregate principal amount of all optional
prepayments of Term Advances made during such period pursuant to
Section 2.06(a) plus.
(viii) solely to the extent not deducted in determining
Consolidated net income (or loss) of the Borrowers and their
Subsidiaries for such period and without duplication of the items
contained in clauses (i) through (vii) immediately above, cash
12
tax payments to governmental authorities or made pursuant to the
Tax Sharing Agreement.
"Excluded Receivables" means (i) accounts receivable reflecting
amounts due for reciprocal compensation for traffic to the internet,
and (ii) accounts receivable which are more than 120 days past the
original invoice date.
"Existing Debt" means Debt of each Loan Party and its
Subsidiaries outstanding immediately before giving effect to the
consummation of the Transaction.
"Extraordinary Receipt" means any cash received by or paid to or
for the account of any Person not in the ordinary course of business,
including, without limitation, tax refunds (excluding amounts applied
to pay taxes within 18 months of receipt thereof), pension plan
reversions, proceeds of insurance (including, without limitation, any
key man life insurance but excluding proceeds of business interruption
insurance to the extent such proceeds constitute compensation for lost
earnings), condemnation awards (and payments in lieu thereof),
indemnity payments and any purchase price adjustment received in
connection with any purchase agreement; provided, however, that an
Extraordinary Receipt shall not include cash receipts received from
proceeds of insurance, condemnation awards (or payments in lieu
thereof) or indemnity payments to the extent that such proceeds,
awards or payments (A) in respect of loss or damage to equipment,
fixed assets or real property are applied (or in respect of which
expenditures were previously incurred) to replace or repair the
equipment, fixed assets or real property in respect of which such
proceeds were received in accordance with the terms of the Loan
Documents, so long as such application is made within six months after
the occurrence of such damage or loss or (B) are received by any
Person in respect of any third party claim against such Person and
applied to pay (or to reimburse such Person for its prior payment of)
such claim and the costs and expenses of such Person with respect
thereto.
"Facility" means the Tranche A Facility, the Tranche B Facility,
the Working Capital Facility or the Letter of Credit Facility
"FCC" means the Federal Communications Commission or any
successor commission or agency of the United States of America having
jurisdiction over each Borrower or any System.
"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 New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the fee letter dated June 25, 1999 between the
Parent, the Borrowers and Morgan Stanley, as amended.
13
"Fiscal Year" means a fiscal year of each Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"Fixed Charge Coverage Ratio" means, at any date of
determination, the ratio of (a) EBITDA of the Parent and its
Subsidiaries to (b) the Fixed Charges, in each case, of or by the
Parent and its Subsidiaries during the two consecutive fiscal quarters
most recently ended for which financial statements are required to be
delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as
the case may be.
"Fixed Charges" means, with respect to the Parent and its
Subsidiaries, for any period, the sum of the following determined on a
consolidated basis, without duplication, in accordance with GAAP: (a)
scheduled principal payments to be made during such period and
Interest Expense during such period, in respect of Debt of the Parent
and its Subsidiaries, (b) Capital Expenditures made by the Parent and
its Subsidiaries during such period, (c) cash taxes payable by the
Parent and its Subsidiaries during such Period and (d) cash dividends
paid by the Parent and its Subsidiaries during such period.
"Funded Debt" of any Person means Debt in respect of the
Advances, in the case of each Borrower, and all other Debt of such
Person that by its terms matures more than one year after the date of
determination or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more
than one year after such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend
credit during a period of more than one year after such date,
including, without limitation, all amounts of Funded Debt of such
Person required to be paid or prepaid within one year after the date
of determination.
"GAAP" has the meaning specified in Section 1.03.
"Grantors" has the meaning specified in the Security Agreement.
"Gross PP & E" means, collectively, all property, plant and
equipment of the Borrowers and their respective Subsidiaries that is
related to the Internet Service Business or the Telecommunications
Business.
"ICG 161" means ICG 161 L.P., a Delaware limited partnership.
"ICG Corporate Headquarters" means ICG Corporate Headquarters
L.L.C., a Colorado limited liability company.
"Guaranties" means the Parent Guaranty and the Subsidiary
Guaranty.
"Guarantors" means the Parent and the Subsidiary Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
14
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender
Party in its capacity as a party to a Secured Hedge Agreement.
"ICG" means ICG Communications, Inc, a Delaware corporation.
"ICG Equipment" has the meaning specified in the recital of
parties this Agreement.
"ICG NetAhead" has the meaning specified in the recital of
parties this Agreement.
"ICG Total Leverage Ratio" means, at any date of determination,
the ratio of (A) Total Debt of ICG and its Subsidiaries as of the end
of the most recently completed fiscal quarter to (B) the product of
(i) two times (ii) EBITDA of ICG and its Subsidiaries for such fiscal
quarter and the immediately preceding fiscal quarter.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Initial Extension of Credit" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Bank", "Initial Lender Parties" and "Initial
Lenders" each has the meaning specified in the recital of parties to
this Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Coverage Ratio" means, at any time of determination in
respect of any Person, the ratio of (a) EBITDA to (b) Interest
Expense, in each case, of or by such Person during the two consecutive
fiscal quarters most recently ended for which financial statements are
required to be delivered to the Lender Parties pursuant to Section
5.03(b) or (c), as the case may be.
"Interest Expense" means, for any period in respect of any
Person, total accrued interest less accreted interest (including,
without limitation, cash interest expense attributable to Capitalized
Leases) determined on a Consolidated basis, without duplication, for
such Person and its Subsidiaries in accordance with GAAP.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Appropriate Borrower
pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by
such Borrower pursuant to the provisions below. The duration of each
such Interest Period shall be one, two, three or six months or, until
15
the Syndication Date, 7-days, as such Borrower may, upon notice
received by the Administrative Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the first day of
such Interest Period, select; provided, however, that:
(a) the Appropriate Borrower may not select any Interest
Period with respect to any Eurodollar Rate Advance under a
Facility that ends after any principal repayment installment date
for such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on or
prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
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;
(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
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month;
(d) neither of the Borrowers may select a 7-day Interest
Period on or after the Syndication Date; and
(e) subject to clause (a) above, if the Appropriate Borrower
has failed to notify the Administrative Agent with respect to the
duration of any Interest Period, the duration of such Interest
Period shall be one month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Internet Service Business" has the meaning specified in the Indenture
dated as of February 12, 1998 between the Parent and Norwest Bank Colorado,
National Association, as Trustee relating to the 10% Senior Discount Notes
issued by the Parent due 2008.
"Inventory" means all Inventory referred to in Section 1(b) of the
Security Agreement.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
16
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (i) or (j) of the definition of "Debt" in respect of
such Person.
"Issuing Bank" means the Initial Issuing Bank and any Eligible
Assignee to which the Letter of Credit Commitment hereunder has been
assigned pursuant to Section 9.07 so long as each such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be
performed by it as the Issuing Bank and notifies the Administrative Agent
of its Applicable Lending Office and the amount of its Letter of Credit
Commitment (which information shall be recorded by the Administrative Agent
in the Register), for so long as the Initial Issuing Bank or Eligible
Assignee, as the case may be, shall have a Letter of Credit Commitment.
"L/C Cash Collateral Account" has the meaning specified in the
Borrowers Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(d)(ii)(A).
"Lead Arranger" has the meaning specified in the recital of parties to
this Agreement.
"Lender Party" means any Lender or the Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall become
a Lender hereunder pursuant to Section 9.07 for so long as such Initial
Lender or Person, as the case may be, shall be a party to this Agreement.
"Letter of Credit Advance" means an advance made by the Issuing Bank
or any Working Capital Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing Bank,
at any time, the amount set forth opposite the Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if
the Issuing Bank has entered into an Assignment and Acceptance, set forth
for the Issuing Bank in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as the Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to
$25,000,000, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(d).
17
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means (a) for purposes of this Agreement and the
Notes and any amendment, supplement or modification hereof or thereof, (i)
this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the Collateral
Documents, (v) the Fee Letter, and (vi) each Letter of Credit Agreement and
(b) for purposes of the Guaranties and the Collateral Documents and for all
other purposes other than for purposes of this Agreement and the Notes, (i)
this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the Collateral
Documents, (v) the Fee Letter, (vi) each Letter of Credit Agreement, and
(vii) each Secured Hedge Agreement.
"Loan Parties" means the Borrowers and the Guarantors (including,
without limitation, the Parent).
"Loan Value" means 70% of the gross book value of any item of Eligible
Collateral.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Parent and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Parent and its Subsidiaries taken as a
whole, (b) the rights and remedies of any Agent or any Lender Party under
any Transaction Document or (c) the ability of any Loan Party to perform
its Obligations under any Transaction Document to which it is or is to be a
party.
"Material Contract" means (i) each agreement described as a Master
Lease Agreement, and each agreement in the nature of a master lease, to
which ICG Equipment is a party as lessor, (ii) any other material lease
agreement to which ICG Equipment is a party as lessor and (iii) each other
contract to which either Borrower or any of its Subsidiaries is a party
involving aggregate consideration payable to or by such Person of
$5,000,000 or more in any year or otherwise material to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of such Person.
"Morgan Stanley" has the meaning specified in the recital of parties
to this Agreement.
"Mortgages" has the meaning specified in Section 3.01(a)(v).
"Mortgage Policies" has the meaning specified in Section
3.01(a)(v)(B).
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any
18
of the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party 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 Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset other than in the ordinary course of
business, or any Extraordinary Receipt received by or paid to or for the
account of any Person, the aggregate amount of cash received from time to
time (whether as initial consideration or through payment or disposition of
deferred consideration) by or on behalf of such Person in connection with
such transaction after deducting therefrom only (without duplication) (a)
brokerage commissions, underwriting or placement agent fees and discounts,
legal fees, accountant's and consultant's fees, finder's fees and other
similar fees and commissions, (b) provision for the amount of taxes payable
in connection with or as a result of such transaction, (c) the amount of
any Debt secured by a Lien on such asset that, by the terms of the
agreement or instrument governing such Debt, is required to be repaid upon
such disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash, actually
paid to a Person that is not an Affiliate of such Person or any Loan Party
or any Affiliate of any Loan Party and are properly attributable to such
transaction or to the asset that is the subject thereof and (d) such other
reserves as are required by GAAP; provided, however, that in the case of
taxes that are deductible under clause (b) above but for the fact that, at
the time of receipt of such cash, such taxes have not been actually paid or
are not then payable, such Loan Party or such Subsidiary may deduct an
amount (the "Reserved Amount") equal to the amount reserved in accordance
with GAAP for such Loan Party's or such Subsidiary's reasonable estimate of
such taxes, other than taxes for which such Loan Party or such Subsidiary
is indemnified, provided further, however, that, at the time such taxes are
paid, an amount equal to the amount, if any, by which the Reserved Amount
for such taxes exceeds the amount of such taxes actually paid shall
constitute "Net Cash Proceeds" of the type for which such taxes were
reserved for all purposes hereunder; provided further that "Net Cash
Proceeds " shall not include any proceeds that are reinvested in the
Internet Service Business or the Telecommunications Business of the
Borrowers and their respective Subsidiaries so long as such reinvestment is
made within 270 days after the receipt of such proceeds.
"Note" means a Tranche A Term Note, a Tranche B Term Note or a Working
Capital Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01 (d).
19
"Notice of Termination" has the meaning specified in Section 2.01(d).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality
of the foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal, interest, Letter of
Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its reasonable discretion, may elect to pay or advance on behalf
of such Loan Party.
"Open Year" has the meaning specified in Section 4.01(q)(ii).
"Other Taxes" has the meaning specified in Section 2.12(b).
"Parent" has the meaning set forth in the recital of the parties
hereto.
"Parent Guaranty" means the guaranty contained in Article VII hereof.
"Parent Total Leverage Ratio" means, at any date of determination, the
ratio of (A) Total Debt of the Parent and its Subsidiaries as of the end of
the most recently completed fiscal quarter to (B) the product of (i) two
times (ii) EBITDA of the Parent and its Subsidiaries for such fiscal
quarter and the immediately preceding fiscal quarter.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (i) Liens for taxes, assessments, governmental charges
or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; (ii) statutory and common law
Liens of landlords and carriers, warehousemen, mechanics, attorneys,
suppliers, materialmen, repairmen or other similar Liens arising in the
ordinary course of business, unexercised rights of set off, in each case
with respect to amounts not yet delinquent or that are bonded or being
contested in good faith by appropriate legal proceedings promptly
instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) Liens incurred or
deposits made to secure the performance of tenders, bids, leases, licenses,
statutory or regulatory obligations, bankers' acceptances, surety,
20
indemnity, performance and appeal bonds, trade or government contracts,
performance and return-of-money bonds and other obligations of a similar
nature incurred in the ordinary course of business (exclusive of
obligations for the payment of borrowed money); (v) easements (including
reciprocal easement agreements), rights-of-way, municipal, building and
zoning ordinances and similar charges, utility agreements, covenants,
reservations, restrictions, encroachments, charges, encumbrances, title
defects or other irregularities that do not materially interfere with the
ordinary course of business of any Loan Party or any of its Subsidiaries;
(vi) leases, subleases, licenses and rights-of-use granted to others and
rights of purchase pursuant to installment sales that do not materially
interfere with the ordinary course of business of any Loan Party or any of
its Subsidiaries; (vii) any interest or title of a lessor in the property
subject to any Capitalized Lease or operating lease; (viii) Liens arising
from filing Uniform Commercial Code financing statements regarding leases
or installment sales; (ix) Liens on property of, or on shares of capital
stock or Debt, any Person existing at the time such Person becomes, or
becomes a part of, any Subsidiary of any Loan Party; provided that such
Liens do not extend to or cover any property or assets of any Loan Party or
any Subsidiary of any Loan Party of other than the property or assets
acquired; (x) Liens in favor of any Loan Party or any Subsidiary of any
Loan Party; (xi) Liens arising from the rendering of a final judgment or
order against any Loan Party or any Subsidiary of any Loan Party that does
not give rise to an Event of Default; (xii) Liens securing reimbursement
obligations with respect to letters of credit that encumber documents and
other property relating to such letters of credit and the products and
proceeds thereof; (xiii) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; and (xiv) Liens arising out of
conditional sale, installment sales, title retention, consignment or
similar arrangements for the sale of goods entered into by any Loan Party
or any of its Subsidiaries in the ordinary course of business.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Debt" has the meaning specified in the Security Agreement.
"Pre-Commitment Information" means all information (including, without
limitation, any confidential information) that any Loan Party has furnished
to any Agent or Lender Party at or prior to the date of, or in connection
with, the Commitment Letter.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Prepayment Amount" has the meaning specified in Section 5.03(a).
"Prepayment Date" has the meaning specified in Section 5.03(a).
21
"Prepayment Notice" has the meaning specified in Section 5.03(a).
"Pro Rata Share" of any amount means, with respect to any Working
Capital Lender at any time, the product of such amount times a fraction the
numerator of which is the amount of such Lender's Working Capital
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, such Lender's Working Capital Commitment
as in effect immediately prior to such termination) and the denominator of
which is the Working Capital Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or 6.01, the Working
Capital Facility as in effect immediately prior to such termination).
"PUC" means any state governmental authority having utility or
telecommunications authority over any Borrower or any System.
"Receivables" means all Receivables referred to in Section 1(c) of the
Security Agreement.
"Redeemable" means, with respect to any Equity Interest, any Debt or
any other right or Obligation, any such Equity Interest, Debt, right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section 2.06 (b)(iv).
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Tax Sharing Agreement.
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate Unused Tranche A Term Commitments at such time and (d) the
aggregate Unused Working Capital Commitments at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Lenders at such
time (A) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such time, (B) such
Lender's Pro Rata Share of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (C) the Unused Tranche A Term Commitment
of such Lender at such time and (D) the Unused Working Capital Commitment
of such Lender at such time. For purposes of this definition, the aggregate
principal amount of the Letter of Credit Advances owing to the Issuing Bank
and the Available Amount of each Letter of Credit shall be considered to be
owed to the Working Capital Lenders ratably in accordance with their
respective Working Capital Commitments.
22
"Responsible Officer" means any officer of any Loan Party or any of
its Subsidiaries.
"Restricted Subsidiary" has the meaning specified in the Indenture
dated as of February 12, 1998 between the Parent and Norwest Bank Colorado,
National Association as Trustee, in respect of the 10% Senior Discount
Notes due 2008.
"Revenue" means, for any period, Consolidated revenues of ICG and its
Subsidiaries for such period as determined on a Consolidated basis in
accordance with GAAP.
"Secured Hedge Agreement " means any Hedge Agreement required or
permitted under Article V that is entered into by a Borrower and any Hedge
Bank.
"Secured Obligations" has the meaning specified in Section 2 of the
Security Agreement.
"Secured Parties" means the Agents, the Lender Parties and the Hedge
Banks.
"Security Agreement" has the meaning specified in Section 3.01(a)(ii).
"Senior Secured Debt" means, at any date of determination, with
respect to the Parent and its Subsidiaries, all Debt of the Parent and its
Subsidiaries that is either secured by a Lien on any assets of the Parent
and/or any of its Subsidiaries or is not Subordinated Debt.
"Senior Secured Debt Ratio" means, at any date of determination, the
ratio of (a) Senior Secured Debt as of the end of the most recently
completed fiscal quarter to (b) the product of (i) two times (ii) EBITDA of
the Parent and its Subsidiaries for such fiscal quarter and the immediately
preceding fiscal quarter.
"Senior Secured Debt Service" means, with respect to the Parent and
its Subsidiaries, for any period, the sum of (a) the aggregate amount of
all principal of, interest accrued on, and premium, if any, on any Senior
Secured Debt that is due and payable during such period and (b) the
aggregate amount of all fees, costs, expenses, indemnification payments,
insurance policy premiums and other amounts, in each case, that are due and
payable with respect to such Debt during such period.
"Senior Secured Debt Service Coverage Ratio" means, at any date of
determination, the ratio of (a) EBITDA of the Parent and its Subsidiaries
for the two most recently ended fiscal quarters of the Parent for which
financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be, to (b) Senior
Secured Debt Service for such two fiscal quarters.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan Party or any ERISA Affiliate could have liability under Section
4069 of ERISA in the event such plan has been or were to be terminated.
23
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, 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 such debts and liabilities as they 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. The amount of
contingent liabilities at any time shall be computed as the amount that, in
the light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
or matured liability.
"Standby Letter of Credit" means any Letter of Credit issued under the
Letter of Credit Facility, other than a Trade Letter of Credit.
"Subordinated Debt" means any Debt of any Loan Party that is
subordinated to the Obligations of such Loan Party under the Loan Documents
on, and that otherwise contains, terms and conditions satisfactory to the
Required Lenders.
"Subordinated Debt Documents" means all agreements, indentures and
instruments pursuant to which Subordinated Debt is issued, in each case as
amended, to the extent permitted under the Loan Documents.
"Subsidiary" of any Person means any corporation, partnership joint
venture, limited liability company trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (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, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided, however, that, solely for the purposes of Sections
5.01(j) and 5.02(d), (e), (g), (j) and (l), "Subsidiary" shall not include
ICG 161 and ICG Corporate Headquarters.
"Subsidiary Guarantors" means the Subsidiaries of the Borrowers listed
on Schedule II hereto and each other Subsidiary of each Borrower (other
than ICG 161 and ICG Corporate Headquarters) that shall be required to
execute and deliver a guaranty pursuant to Section 5.01(j).
"Subsidiary Guaranty" has the meaning specified in Section
3.01(a)(iii).
"Syndication Date" means the earlier to occur of (a) the 30th day
following the Effective Date and (b) the date upon which the Syndication
Agent has determined in its sole discretion (and has so notified the
Borrowers) that the primary syndication of the Facilities has been
completed.
24
"System" means each data communications, telecommunications or
information system (including, without limitation, any voice, video
transmission, data or Internet services), and any related, ancillary or
complementary services, owned by the Borrowers or their respective
Subsidiaries and all replacements, enhancements or additions thereto.
"Syndication Period" has the meaning specified in Section 2.02(b).
"Tax Sharing Agreement" means the Tax Sharing Agreement between ICG,
the Parent and each of the Borrowers dated as of August 9, 1999.
"Taxes" has the meaning specified in Section 2.12(a).
"Telecommunications Business" has the meaning specified in the
Indenture dated as of February 12, 1998 between the Parent and Norwest Bank
Colorado, National Association, as Trustee, in respect of the 10% Senior
Discount Notes due 2008.
"Term Advance" means a Tranche A Term Advance or a Tranche B Term
Advance.
"Term Borrowing" means a Tranche A Term Borrowing or a Tranche B Term
Borrowing.
"Term Commitment" means a Tranche A Term Commitment or a Tranche B
Term Commitment.
"Term Facility" means the Tranche A Term Facility or the Tranche B
Term Facility.
"Term Lender" means a Tranche A Term Lender or the Tranche B Term
Lender.
"Term Note" means a Tranche A Term Note or the Tranche B Term Note.
"Total Debt" means, at any date of determination, with respect to any
Person and its Subsidiaries, the sum of the following determined on a
Consolidated basis, without duplication, in accordance with GAAP: (a) all
liabilities, obligations and indebtedness for borrowed money, including,
but not limited to, obligations evidenced by bonds, debentures, notes or
other similar instruments, (b) all obligations to pay the deferred and
unpaid purchase price of property or services which is due more than 6
months after placing such property in service or taking delivery or title
thereto or the completion of such services, (exclusive of rent for real
property for which the associated lease would not be capitalized under
GAAP), including, but not limited to, all obligations under non-competition
agreements, excluding trade payables and accrued current liabilities
arising in the ordinary course of business, (c) all obligations as lessees
under capital leases (other than the interest component thereof), (d) all
guaranty obligations, (e) all obligations, liabilities and indebtedness of
any other Person secured by a Lien on any asset of such Person and its
Subsidiaries, (f) all obligations, contingent or otherwise, relative to the
face amount of letters of credit (excluding those that are cash
collateralized), whether or not drawn and banker's acceptances issued for
the account of any of such Person and its Subsidiaries, and (g) all
25
Obligations of such Person in respect of Hedge Agreements, valued at the
Agreement Value thereof.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
Inventory to either Borrower or any of its Subsidiaries to effect payment
for such Inventory.
"Tranche A Term Advance" means an advance made by any Tranche A Term
Lender pursuant to Section 2.01(a).
"Tranche A Term Borrowing" means a borrowing consisting of
simultaneous Tranche A Advances pursuant to Section 2.02(b).
"Tranche A Term Commitment" means, with respect to any Tranche A Term
Lender at any time, the amount set forth opposite such Lender's name on
Schedule I hereto under the caption "Tranche A Term Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, the
aggregate amount set forth for such Lender in the Register maintained by
the Administrative Agent pursuant to Section 9.07(d) as such Lender's
"Tranche A Term Commitment", as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Tranche A Term Facility" means, at any time, the aggregate amount of
the Tranche A Term Lenders' Tranche A Term Commitments at such time.
"Tranche A Term Lender" means any Lender that has a Tranche A Term
Commitment.
"Tranche A Term Note" means a promissory note of each Borrower payable
to the order of any Tranche A Term Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the indebtedness of such Borrower to such
Lender resulting from each Tranche A Advance made by such Lender,
evidencing the indebtedness of such Borrower to such Lender resulting from
each such Tranche A Term Advance made by such Lender, as amended.
"Tranche A Termination Date" means, for the Tranche A Term Facility,
the earlier of (a) June 30, 2005 and (b) the termination in whole of the
Tranche A Term Commitments pursuant to Section 2.05 or 6.01.
"Tranche B Term Advance" means an advance made by any Tranche B Term
Lender pursuant to Section 2.01(b).
"Tranche B Term Borrowing" means a borrowing consisting of
simultaneous Tranche B Advances pursuant to Section 2.02(b).
"Tranche B Term Commitment" means, with respect to any Tranche B Term
Lender, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Tranche B Term Commitment" or, if such Lender has
entered into one or more Assignment and Acceptances, the aggregate amount
set forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Tranche B Term
26
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Tranche B Term Facility" means, at any time, the aggregate amount of
the Tranche B Term Lenders' Tranche B Term Commitments at such time.
"Tranche B Term Lender" means any Lender that has a Tranche B Term
Commitment.
"Tranche B Term Note" means a promissory note of each Borrower payable
to the order of any Tranche B Term Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of such Borrower to such
Lender resulting from each Tranche B Advance made by such Lender,
evidencing the indebtedness of such Borrower to such Lender resulting from
each such Tranche B Term Advance made by such Lender, as amended.
"Tranche B Termination Date" means, for the Tranche B Term Facility,
the earlier of (a) March 31, 2006, and (b) the termination in whole of the
Tranche B Term Commitments pursuant to Section 2.05 or 6.01.
"Transaction Documents" means, collectively, the Loan Documents and
the Related Documents.
"Type" refers to the distinction between Advances bearing interest at
the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Tranche A Term Commitment" means, with respect to any Tranche
A Term Lender at any time, (a) such Lender=s Tranche A Term Commitment at
such time minus (b) the aggregate principal amount of all Tranche A Term
Advances made by such Lender and outstanding at such time.
"Unused Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, (a) such Lender's Working Capital Commitment at
such time minus (b) the sum of (i) the aggregate principal amount of all
Working Capital Advances and (without duplication) Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and outstanding
at such time plus (ii) such Lender's Pro Rata Share of (A) the aggregate
Available Amount of all Letters of Credit outstanding at such time and (B)
the aggregate principal amount of all Letter of Credit Advances made by the
Issuing Bank pursuant to Section 2.03(c) and outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
27
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in Section
2.01(c).
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the Working
Capital Lenders.
"Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Working Capital Commitment"
or, if such Lender has entered into one or more Assignment and Acceptances,
set forth for such Lender in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as such Lender's "Working Capital
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Working Capital Facility" means, at any time, the aggregate amount of
the Working Capital Lenders' Working Capital Commitments at such time.
"Working Capital Termination Date" means, for the Working Capital
Facility and the Letter of Credit Facility, the earlier of (a) June 30,
2005 and (b) the termination in whole of the Working Capital Commitments
and the Letter of Credit Commitments pursuant to Section 2.05 or 6.01.
"Working Capital Lender" means any Lender that has a Working Capital
Commitment.
"Working Capital Note" means a promissory note of each Borrower
payable to the order of any Working Capital Lender, in substantially the
form of Exhibit A-3 hereto, evidencing the aggregate indebtedness of such
Borrower to such Lender resulting from the Working Capital Advances and
Letter of Credit Advances, as amended.
SECTION 1.02. Computation of Time Periods; Other Definitional Provisions.
In this Agreement and the other Loan Documents in the computation of periods of
time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(g) ("GAAP").
28
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The Tranche A
Term Advances. Each Tranche A Term Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (a "Tranche A Term Advance")
to the Appropriate Borrower on the Effective Date and, from time to time
thereafter, on any Business Day during the period from the Effective Date until
August 10, 2000 in an amount for each such Advance not to exceed such Lender's
Unused Tranche A Term Commitment at such time. Each Tranche A Term Borrowing
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall consist of Tranche A Term Advances made
simultaneously by the Tranche A Term Lenders ratably according to their Tranche
A Term Commitments. Amounts borrowed under this Section 2.01(a) and repaid or
prepaid may not be reborrowed.
(b) The Tranche B Term Advances. Each Tranche B Term Lender severally
agrees, on the terms and conditions hereinafter set forth, to make a single
advance (a "Tranche B Term Advance") to the Borrowers on the Effective Date in
an amount not to exceed such Lender's Tranche B Term Commitment at such time.
The Tranche B Term Borrowing shall consist of Tranche B Term Advances made
simultaneously by the Tranche B Term Lenders ratably according to their Tranche
B Term Commitments. Amounts borrowed under this Section 2.01(b) and repaid or
prepaid may not be reborrowed.
(c) The Working Capital Advances. Each Working Capital Lender severally
agrees, on the terms and conditions hereinafter set forth, to make advances
(each a "Working Capital Advance") to the Appropriate Borrower from time to time
on any Business Day during the period from the Effective Date until the Working
Capital Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Working Capital Commitment at such time. Each Working Capital
Borrowing shall be in an aggregate amount of $1,000,000 or an integral multiple
of $500,000 in excess thereof (other than a Borrowing the proceeds of which
shall be used solely to repay or prepay in full outstanding Letter of Credit
Advances) and shall consist of Working Capital Advances made simultaneously by
the Working Capital Lenders ratably according to their Working Capital
Commitments. Within the limits of each Working Capital Lender's Unused Working
Capital Commitment in effect from time to time, each Borrower may borrow under
this Section 2.01(c), prepay pursuant to Section 2.06(a) and reborrow under this
Section 2.01(c).
(d) The Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "Letters of
Credit") for the account of the Appropriate Borrower from time to time on any
Business Day during the period from the Effective Date until 60 days before the
Working Capital Termination Date in an aggregate Available Amount (i) for all
Letters of Credit not to exceed at any time the lesser of (x) the Letter of
Credit Facility at such time and (y) the Issuing Bank's Letter of Credit
Commitment at such time and (ii) for each such Letter of Credit not to exceed an
amount equal to the Unused Working Capital Commitments of the Working Capital
Lenders at such time. No Letter of Credit shall have an expiration date
(including all rights of the Appropriate Borrower or the beneficiary to require
29
renewal) later than the earlier of 60 days before the Working Capital
Termination Date and (A) in the case of a Standby Letter of Credit, one year
after the date of issuance thereof, but may by its terms be renewable annually
upon notice (a "Notice of Renewal") given to the Issuing Bank and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Letter of Credit but in any event at least three Business Days prior to the
date of the proposed renewal of such Standby Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III unless the
Issuing Bank has notified the Appropriate Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit but in any event at least 30 Business Days prior
to the date of automatic renewal of its election not to renew such Standby
Letter of Credit (a "Notice of Termination") and (B) in the case of a Trade
Letter of Credit, 60 days after the date of issuance thereof; provided that the
terms of each Standby Letter of Credit that is automatically renewable annually
shall (x) require the Issuing Bank to give the beneficiary named in such Standby
Letter of Credit notice of any Notice of Termination, (y) permit such
beneficiary, upon receipt of such notice, to draw under such Standby Letter of
Credit prior to the date such Standby Letter of Credit otherwise would have been
automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Working Capital Termination
Date. If either a Notice of Renewal is not given by the Appropriate Borrower or
a Notice of Termination is given by the Issuing Bank pursuant to the immediately
preceding sentence, such Standby Letter of Credit shall expire on the date on
which it otherwise would have been automatically renewed; provided, however,
that even in the absence of receipt of a Notice of Renewal the Issuing Bank may
in its discretion, unless instructed to the contrary by the Administrative Agent
or the Appropriate Borrower, deem that a Notice of Renewal had been timely
delivered and in such case, a Notice of Renewal shall be deemed to have been so
delivered for all purposes under this Agreement. Each Standby Letter of Credit
shall contain a provision authorizing the Issuing Bank to deliver to the
beneficiary of such Letter of Credit, upon the occurrence and during the
continuance of an Event of Default, a notice (a "Default Termination Notice")
terminating such Letter of Credit and giving such beneficiary 15 days to draw
such Letter of Credit. Within the limits of the Letter of Credit Facility, and
subject to the limits referred to above, each Borrower may request the issuance
of Letters of Credit under this Section 2.01(d), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this Section 2.01(d).
SECTION 2.02. Making the Advances. (a) Except as otherwise provided in
Section 2.02(b) or 2.03, each Borrowing shall be made on notice, given not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar
Rate Advances, or the first Business Day prior to the date of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by either
Borrower to the Administrative Agent, which shall give to each Appropriate
Lender prompt notice thereof by telex or telecopier. Each such notice of a
Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed immediately
in writing, or telex or telecopier, in substantially the form of Exhibit B
hereto, specifying therein the requested (i) name of such Borrower, (ii) date of
such Borrowing, (ii) Facility under which such Borrowing is to be made, (iii)
Type of Advances comprising such Borrowing, (iv) aggregate amount of such
Borrowing and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Appropriate Lender
shall, before 11:00 A.M. (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
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other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Appropriate
Borrower by crediting the Appropriate Borrower's Account in same day funds;
provided, however, that, in the case of any Working Capital Borrowing, the
Administrative Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Letter of Credit Advances made by the Issuing
Bank and by any other Working Capital Lender and outstanding on the date of such
Working Capital Borrowing, plus interest accrued and unpaid thereon to and as of
such date, available to such Issuing Bank and such other Working Capital Lenders
for repayment of such Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary notwithstanding,
neither Borrower may select Eurodollar Rate Advances (i) for any initial
Borrowing hereunder and during the period from the Effective Date to the
Syndication Date (the "Syndication Period"), provided, however, that either
Borrower may select Eurodollar Rate Advances for such initial Borrowing or
during the Syndication Period, so long as such Borrower indemnifies the Agents
and each Lender Party in accordance with Section 9.04(c) and as otherwise
provided under the Loan Documents, (ii) for any Borrowing if the aggregate
amount of such Borrowing is less than $1,000,000 or (iii) if the obligation of
the Appropriate Lenders to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.09 or 2.10.
(c) The Tranche A Advances may not be outstanding as part of more than ten
separate Borrowings, the Tranche B Term Advances may not be outstanding as part
of more than five separate Borrowing and the Working Capital Advances may not be
outstanding as part of more than ten separate Borrowings.
(d) Each Notice of Borrowing shall be irrevocable and binding on the
Appropriate Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the
Borrowers shall indemnify each Appropriate Lender against any loss, cost or
expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(e) Unless the Administrative Agent shall have received notice from an
Appropriate Lender prior to the date of any Borrowing under a Facility under
which such Lender has a Commitment that such Lender will not make available to
the Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Appropriate Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Lender and such Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
such Borrower until the date such amount is repaid or paid to the Administrative
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Agent, at (i) in the case of such Borrower, the interest rate applicable at such
time under Section 2.07 to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it as part
of any Borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit. (a) Request for Issuance. Each Letter of Credit shall be issued upon
notice, given not later than 11:00 A.M. (New York City time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by a Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Working Capital Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) name of the
Borrower, (B) date of such issuance (which shall be a Business Day), (C)
Available Amount of such Letter of Credit, (D) expiration date of such Letter of
Credit, (E) name and address of the beneficiary of such Letter of Credit and (F)
form of such Letter of Credit, and shall be accompanied by such application and
agreement for letter of credit as such Issuing Bank may specify to such Borrower
for use in connection with such requested Letter of Credit (a "Letter of Credit
Agreement"). If (x) the requested form of such Letter of Credit is acceptable to
the Issuing Bank in its sole discretion and (y) it has not received notice of
objection to issuance from Lenders holding at least a majority of the Working
Capital Commitments, the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
Appropriate Borrower at its office referred to in Section 9.02 or as otherwise
agreed with such Borrower in connection with such issuance. In the event and to
the extent that the provisions of any Letter of Credit Agreement shall conflict
with this Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish (A) to the
Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued by the
Issuing Bank during the previous week and drawings during such week under all
Letters of Credit issued by the Issuing Bank, (B) to each Working Capital Lender
on the first Business Day of each month a written report summarizing issuance
and expiration dates of Letters of Credit issued by the Issuing Bank during the
preceding month and drawings during such month under all Letters of Credit
issued by the Issuing Bank and (C) to the Administrative Agent and each Working
Capital Lender on the first Business Day of each calendar quarter a written
report setting forth the average daily aggregate Available Amount during the
preceding calendar quarter of all Letters of Credit issued by the Issuing Bank.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a draft
drawn under any Letter of Credit shall constitute for all purposes of this
Agreement the making by such Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by the Issuing Bank, with a copy of such demand to the Administrative Agent,
each Working Capital Lender shall purchase from the Issuing Bank, and the
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Issuing Bank shall sell and assign to each such Working Capital Lender, such
Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of the
date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to the Issuing Bank. Each
Borrower hereby agrees to each such sale and assignment. Each Working Capital
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank, provided that notice of such demand is given not later than 11:00 A.M.
(New York City time) on such Business Day, or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any Working Capital Lender of a
portion of a Letter of Credit Advance, the Issuing Bank represents and warrants
to such other Lender that the Issuing Bank is the legal and beneficial owner of
such interest being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility with respect to
such Letter of Credit Advance, the Loan Documents or any Loan Party. If and to
the extent that any Working Capital Lender shall not have so made the amount of
such Letter of Credit Advance available to the Administrative Agent, such
Working Capital Lender and the Borrowers severally agree to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Issuing Bank until the date
such amount is paid to the Administrative Agent, at the Federal Funds Rate for
its account or the account of the Issuing Bank, as applicable. If such Lender
shall pay to the Administrative Agent such amount for the account of the Issuing
Bank on any Business Day, such amount so paid in respect of principal shall
constitute a Letter of Credit Advance made by such Lender on such Business Day
for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by the Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any Lender to
make the Letter of Credit Advance to be made by it on the date specified in
Section 2.03(c) shall not relieve any other Lender of its obligation hereunder
to make its Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the Letter of Credit
Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Tranche A Term Advances. On the
last Business Day of each calendar quarter specified below, the Borrowers shall
jointly and severally repay to the Administrative Agent for the ratable account
of the Tranche A Term Lenders an aggregate outstanding principal amount of the
Tranche A Term Advances (which amounts shall be reduced as a result of the
application of prepayments in accordance with the priorities set forth in
Section 2.06) in twelve consecutive installments, each such installment being
payable on each such quarterly date during each year indicated below (such
installments to aggregate for such year to the percentage set opposite such year
of the outstanding Tranche A Term Advances outstanding on September 27, 2002 and
to be in equal principal amounts for each such quarterly date for such year):
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Calendar Quarter Percentage
From and including the third quarter of 2002 to and 25%
including the second quarter of 2003
From and including the third quarter of 2003 to and 35%
including the second quarter of 2004
From and including the third quarter of 2004 to and 40%
including the second quarter of 2005
provided, however, that the final principal installment shall be repaid on the
Tranche A Termination Date and in any event shall be in an amount equal to the
aggregate principal amount of the Tranche A Term Advances outstanding on such
date.
(b) Tranche B Term Advances. On the last day of each calendar quarter
specified below, the Borrowers shall jointly and severally repay to the
Administrative Agent for the ratable account of the Tranche B Term Lenders the
aggregate outstanding principal amount of the Tranche B Term Advances (which
amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.06) in 27
consecutive installments, each such installment being payable on each such
quarterly date during each year indicated below (such installments to aggregate
for such year to the percentage set opposite such year of the Tranche B Term
Advances outstanding on the Effective Date and to be in equal principal amounts
for each such quarterly date for such year):
Calendar Quarter Percentage
From and including the third quarter of 1999 to and 1%
including the second quarter of 2005
From and including the third quarter of 2005 to and 94%
including the first quarter of 2006
provided, however, that the final principal installment shall be repaid on the
Tranche B Termination Date and in any event shall be in an amount equal to the
aggregate principal amount of the Tranche B Term Advances outstanding on such
date.
(c) Working Capital Advances. The Borrowers shall jointly and severally
repay to the Administrative Agent for the ratable account of the Working Capital
Lenders on the Working Capital Termination Date the aggregate principal amount
of the Working Capital Advances then outstanding.
(d) Letter of Credit Advances. (i) The Borrowers shall jointly and
severally repay to the Administrative Agent for the account of the Issuing Bank
on the Working Capital Termination Date the outstanding principal amount of each
Letter of Credit Advance made by, and not reimbursed to, the Issuing Bank.
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(ii) The Obligations of the Borrowers under this Agreement, any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement, such Letter of Credit Agreement and
such other agreement or instrument under all circumstances, including, without
limitation, the following circumstances (it being understood that any such
payment by the Borrowers is without prejudice to, and does not constitute a
waiver of, any rights the Borrowers might have or might acquire as a result of
the payment by the Issuing Bank of any draft or the reimbursement by the
Borrowers thereof):
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of any Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other
right that any Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranties or any other guarantee, for
all or any of the Obligations of any Borrower in respect of the L/C
Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, any Loan Party or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a) Optional.
The Borrowers may, upon at least five Business Days' notice to the
Administrative Agent terminate in whole or reduce in part the Unused Tranche A
Term Commitments and the Unused Working Capital Commitments; provided, however,
that each partial reduction of the Commitments (i) shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and
(ii) shall be made ratably among the Appropriate Lenders in accordance with
35
their Commitments with respect to such Facility. For the avoidance of doubt, the
termination or reduction of the Unused Tranche A Commitments and the Unused
Working Capital Commitments pursuant to the preceding sentence shall be deemed
to be a termination or reduction, as applicable, in the amount of such
termination or reduction of the Tranche A Term Commitments or the Working
Capital Commitment, as the case may be.
(b) Mandatory. The Facilities shall be automatically and permanently
reduced on each date a prepayment thereof is required to be made pursuant to
Section 2.06(b)(i) or (ii) in an amount equal to the amount of such prepayment,
provided that such reduction of the Facilities shall be made ratably among the
Appropriate Lenders in accordance with their relevant Commitments in accordance
with the priorities pursuant to Section 2.06(b).
SECTION 2.06. Prepayments. (a) Optional. Subject to Section 5.03(a)(ii),
the Borrowers may, upon at least one Business Day's notice in the case of Base
Rate Advances and three Business Days' notice in the case of Eurodollar Rate
Advances, in each case to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrowers shall, jointly and severally prepay the outstanding aggregate
principal amount of the Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of
$5,000,000 or an integral multiple of $1,000,000 in excess thereof; and (y) if
any prepayment of a Eurodollar Rate Advance is made on a date other than the
last day of an Interest Period for such Advance, the Borrowers shall also pay
any amounts owing pursuant to Section 9.04(c). Each such prepayment shall be
applied ratably first to the Term Facilities and to the installments thereof pro
rata and second to the Working Capital Facility as set forth in clause (b)(iv)
below.
(b) Mandatory. (i) Commencing with the Fiscal Year ending December 31,
2002, the Borrowers shall, on the 90th day following the end of such Fiscal
Year, jointly and severally prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings and, thereafter, deposit an amount in the
L/C Cash Collateral Account, in an amount equal to 50% of the amount of Excess
Cash Flow for such Fiscal Year. Each such prepayment shall be applied ratably
first to the Term Facilities and to the installments thereof pro rata and second
to the Working Capital Facility as set forth in clause (iv) below.
(ii) The Borrowers shall, on the date of receipt of the Net Cash Proceeds
by any Borrower or any of their Subsidiaries from (A) the sale, lease, transfer
or other disposition of any assets of any Borrower or any of its Subsidiaries
(other than any sale, lease, transfer or other disposition of assets pursuant to
clause (i), (ii), or (iv) of Section 5.02(e)) and (B) any Extraordinary Receipt
received by or paid to or for the account of any Borrower or any of their
Subsidiaries and not otherwise included in clause (A) above, jointly and
severally prepay an aggregate principal amount of the Advances comprising part
of the same Borrowings and, thereafter, deposit an amount in the L/C Cash
Collateral Account, in an amount equal to the amount of such Net Cash Proceeds.
Each such prepayment shall be applied ratably first to the Term Facilities and
to the installments thereof pro rata and second to the Working Capital Facility
as set forth in clause (iv) below.
(iii) The Borrowers shall, on each Business Day, jointly and severally pay
to the Administrative Agent for deposit in the L/C Cash Collateral Account an
36
amount sufficient to cause the aggregate amount on deposit in the L/C Cash
Collateral Account to equal the amount by which the aggregate Available Amount
of all Letters of Credit then outstanding exceeds the Letter of Credit Facility
on such Business Day.
(iv) Prepayments of the Working Capital Facility made pursuant to clause
(i) and (ii) above shall be first applied to prepay Letter of Credit Advances
then outstanding until such Advances are paid in full, second applied to prepay
Working Capital Advances then outstanding comprising part of the same Borrowings
until such Advances are paid in full and third deposited in the L/C Cash
Collateral Account to cash collateralize 100% of the Available Amount of the
Letters of Credit then outstanding; and, in the case of prepayments of the
Working Capital Facility required pursuant to clause (i) or (ii) above, the
amount remaining (if any) after the prepayment in full of the Advances then
outstanding and the 100% cash collateralization of the aggregate Available
Amount of Letters of Credit then outstanding (the sum of such prepayment
amounts, cash collateralization amounts and remaining amount being referred to
herein as the "Reduction Amount") may be retained by the Borrowers and the
Working Capital Facility shall be permanently reduced as set forth in Section
2.05(b). Upon the drawing of any Letter of Credit for which funds are on deposit
in the L/C Cash Collateral Account, such funds shall be applied to reimburse the
Issuing Bank.
(v) All prepayments under this subsection (b) shall be made together with
accrued interest to the date of such prepayment on the principal amount prepaid.
If any payment of Eurodollar Rate Advances otherwise required to be made under
this Section 2.06(b) would be made on a day other than the last day of the
applicable Interest Period therefor, the Borrowers may direct the Administrative
Agent to (and if so directed, the Administrative Agent shall) deposit such
payment in the Cash Collateral Account until the last day of the applicable
Interest Period at which time the Administrative Agent shall apply the amount of
such payment to the prepayment of such Advances; provided, however, that such
Advances shall continue to bear interest as set forth in Section 2.07 until the
last day of the applicable Interest Period therefor.
(c) Term B Opt-Out. The Administrative Agent shall promptly forward to each
Term B Lender each Prepayment Notice received by it pursuant to Section
5.03(a)(ii). With respect to any prepayment of the Term Advances, the
Administrative Agent shall ratably pay the Tranche A Term Lenders and the
Tranche B Term Lenders; provided, however, that any Tranche B Term Lender, at
its option, to the extent that any Tranche A Term Advances are then outstanding,
may elect not to accept such prepayment (such Lender being a "Declining
Lender"), in which event the provisions of the next sentence shall apply. Any
Tranche B Term Lender may elect not to accept its ratable share of the
prepayment referred to in any Prepayment Notice by giving written notice to the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
fourth Business Day immediately preceding the scheduled Prepayment Date. On the
Prepayment Date, an amount equal to that portion of the Prepayment Amount
available to prepay Tranche B Term Lenders (less any amounts that would
otherwise be payable to Declining Lenders) shall be applied to prepay Tranche B
Term Advances owing to Tranche B Term Lenders other than Declining Lenders and
any amounts that would otherwise have been applied to prepay Tranche B Term
Advances owing to Declining Lenders shall instead be applied ratably to prepay
the remaining Tranche A Term Advances as provided in Sections 2.06(a) and (b);
provided, further that on prepayment in full of Term Advances owing to Term
Lenders other than Declining Lenders, the remainder of any Prepayment Amount
shall be applied ratably to prepay Tranche B Term Advances owing to Declining
Lenders.
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SECTION 2.07. Interest. (a) Scheduled Interest. The Borrowers shall jointly
and severally pay interest on the unpaid principal amount of each Advance owing
to each Lender from the date of such Advance until such principal amount shall
be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a Base
Rate Advance, a rate per annum equal at all times to the sum of (A) the
Base Rate in effect from time to time plus (B) the Applicable Margin in
effect from time to time, payable in arrears quarterly on the last day of
each quarter during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance is
a Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (A) the Eurodollar Rate for
such Interest Period for such Advance plus (B) the Applicable Margin in
effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the date
such Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance of a
payment or bankruptcy Default or any Event of Default, each Borrower shall
jointly and severally pay interest on (i) the unpaid principal amount of each
Advance owing to each Lender, payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
under the Loan Documents that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid, in
the case of interest, on the Type of Advance on which such interest has accrued
pursuant to clause (a)(i) or (a)(ii) above and, in all other cases, on Base Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly after receipt of
a Notice of Borrowing pursuant to Section 2.02(a), a notice of Conversion
pursuant to Section 2.09 or a notice of selection of an Interest Period pursuant
to the terms of the definition of "Interest Period", the Administrative Agent
shall give notice to the Appropriate Borrower and each Appropriate Lender of the
applicable Interest Period and the applicable interest rate determined by the
Administrative Agent for purposes of clause (a)(i) or (a)(ii) above.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrowers shall jointly and
severally pay to the Administrative Agent for the account of the Lenders a
commitment fee, from the Effective Date in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender, payable in arrears
quarterly on the last Business Day of each calendar quarter, on the available
but Unused Tranche A Term Commitment (until August 10, 2000) and the available
but Unused Working Capital Commitment (until the Working Capital Termination
Date) at the rate expressed as percentage set forth below opposite the
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percentage per annum on the average daily unused portion of each Appropriate
Lender's aggregate available Tranche A Term Commitments and Working Capital
Commitments during such quarter:
Percentage of Unused Commitments Commitment Fee
>75% 1.375%
>50% and <75% 1.250%
>25% and <50% 1.125%
<25% 0.625%
provided, however, that any commitment fee accrued with respect to any of the
Commitments of a Defaulting Lender during the period prior to the time such
Lender became a Defaulting Lender and unpaid at such time shall not be payable
by the Borrowers so long as such Lender shall be a Defaulting Lender except to
the extent that such commitment fee shall otherwise have been due and payable by
the Borrowers prior to such time; and provided further, however, that no
commitment fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrowers shall jointly and
severally pay to the Administrative Agent for the account of each Working
Capital Lender a commission, payable in arrears quarterly on the last Business
Day of each calendar quarter, and on the earliest to occur of the full drawing,
expiration, termination or cancellation of any Letter of Credit and on the
Working Capital Termination Date, on such Lender's Pro Rata Share of the average
daily aggregate Available Amount during such quarter of (A) all Standby Letters
of Credit outstanding from time to time at a rate equal to the Applicable Margin
in effect from day to day for Eurodollar Rate Advances under the Working Capital
Facility and (B) all Trade Letters of Credit then outstanding at a rate equal to
the Applicable Margin in effect from day to day for Eurodollar Rate Advances
under the Working Capital Facility.
(ii) The Borrowers shall jointly and severally pay to the Issuing Bank, for
its own account, such commissions, issuance fees, fronting fees, transfer fees
and other fees and charges in connection with the issuance or administration of
each Letter of Credit as the Borrowers and the Issuing Bank shall agree.
(c) Agents' Fees. The Borrowers shall jointly and severally pay to each
Agent for its own account such fees as may from time to time be agreed between
the Borrower and such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Appropriate
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion and subject to the provisions of Section
2.07 and Section 2.10, Convert all or any portion of the Advances of one Type
comprising the same Borrowing into Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum amount specified in
Section 2.02(c), no Conversion of any Advances shall result in more separate
39
Borrowings than permitted under Section 2.02(c) and each Conversion of Advances
comprising part of the same Borrowing under any Facility shall be made ratably
among the Appropriate Lenders in accordance with their Commitments under such
Facility. Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on such Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid principal
amount of Eurodollar Rate Advances comprising any Borrowing shall be reduced, by
payment or prepayment or otherwise, to less than $1,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(ii) If the Appropriate Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify such Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a one month
Eurodollar Rate Advance.
(iii) Upon the occurrence and during the continuance of any Default, (x)
each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance and (y) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining or participating in Letters of Credit or of
agreeing to make or of making or maintaining Letter of Credit Advances
(excluding, for purposes of this Section 2.10, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrowers shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), jointly and severally pay to the Administrative Agent for
the account of such Lender Party additional amounts sufficient to compensate
such Lender Party for such increased cost; provided, however, that a Lender
Party claiming additional amounts under this Section 2.10(a) agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost that may thereafter accrue and would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous to such Lender
Party. A certificate as to the amount of such increased cost, and the details of
the computation thereof, submitted to the Borrowers by such Lender Party, shall
be conclusive and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the compliance with any
40
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender Party or
any corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder and other commitments of such type or the
issuance or maintenance of or participation in the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrowers shall jointly and severally pay to the Administrative Agent for the
account of such Lender Party, from time to time as specified by such Lender
Party, additional amounts sufficient to compensate such Lender Party in the
light of such circumstances, to the extent that such Lender Party reasonably
determines such increase in capital to be allocable to the existence of such
Lender Party's commitment to lend or to issue or participate in Letters of
Credit hereunder or to the issuance or maintenance of or participation in any
Letters of Credit. A certificate as to such amounts, and the details of the
computation thereof, submitted to the Borrowers by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any Facility,
Lenders owed at least 50% of the then aggregate unpaid principal amount thereof
notify the Administrative Agent that the Eurodollar Rate for any Interest Period
for such Advances will not adequately reflect the cost to such Lenders of
making, funding or maintaining their Eurodollar Rate Advances for such Interest
Period, the Administrative Agent shall forthwith so notify the Borrowers and the
Appropriate Lenders, whereupon (i) each such Eurodollar Rate Advance under such
Facility will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrowers that such Lenders have determined that the circumstances causing such
suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrowers
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrowers that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrowers shall make each
payment hereunder and under the Notes, irrespective of any right of counterclaim
or set-off (except as otherwise provided in Section 2.15), not later than 11:00
A.M. (New York City time) on the day when due in U.S. dollars to the
41
Administrative Agent at the Administrative Agent's Account in same day funds,
with payments being received by the Administrative Agent after such time being
deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by any such Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by any such Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(d), from and after the effective date of such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes in respect of the interest assigned thereby to the Lender Party
assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such
effective date directly between themselves.
(b) The Borrowers hereby authorize each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder or, in the case of a Lender, under the Note held by such
Lender, to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrower's accounts with such Lender Party or such
Affiliate any amount so due.
(c) All computations of interest based on the Base Rate shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the Eurodollar Rate or the
Federal Funds Rate and of fees and Letter of Credit commissions shall be made by
the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fee, as the
case may be; provided, however, that, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from the
Borrowers prior to the date on which any payment is due to any Lender Party
hereunder that any such Borrower will not make such payment in full, the
Administrative Agent may assume that any such Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each such Lender
Party on such due date an amount equal to the amount then due such Lender Party.
If and to the extent any such Borrower shall not have so made such payment in
full to the Administrative Agent, each such Lender Party shall repay to the
42
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to the
Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party=s proportionate share of the principal amount
of all outstanding Advances and the Available Amount of all Letters of Credit
then outstanding, in repayment or prepayment of such of the outstanding Advances
or other Obligations owed to such Lender Party, and for application to such
principal installments, as the Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrowers hereunder or
under the Notes shall be made, in accordance with Section 2.11, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, (i) in the case of each Lender Party and each Agent, taxes
that are imposed on its overall net income by the United States and taxes that
are imposed on its overall net income (and any franchise taxes) by the state or
foreign jurisdiction under the laws of which such Lender Party or such Agent, as
the case may be, is organized or any political subdivision thereof and, (ii) in
the case of each Lender Party, taxes that are imposed on its overall net income
(and any franchise taxes) by the state or foreign jurisdiction of such Lender
Party's Applicable Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrowers shall be required by law
to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender Party or any Agent, (i) the sum payable by the Borrowers
shall be increased as may be necessary so that after the Borrowers and the
Administrative Agent have made all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender Party
or such Agent, as the case may be, receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrowers shall make
all such deductions and (iii) the Borrowers shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrowers shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with respect to,
this Agreement, the Letters of Credit or the Notes (hereinafter referred to as
"Other Taxes").
(c) The Borrowers shall indemnify each Lender Party and each Agent for and
hold them harmless against the full amount of Taxes and Other Taxes, and for the
full amount of taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 2.12, imposed on or paid by such Lender Party or such Agent
(as the case may be) and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender Party or
such Agent (as the case may be) makes written demand therefor. Any such demand
shall show in reasonable detail the amount payable and the calculations used to
determine such amount.
43
(d) Within 30 days after the date of any payment of Taxes, the Borrowers
shall furnish to the Administrative Agent, at its address referred to in Section
9.02, the original or a certified copy of a receipt evidencing such payment. In
the case of any payment hereunder or under the Notes by or on behalf of the
Borrowers through an account or branch outside the United States or by or on
behalf of the Borrowers by a payor that is not a United States person, if the
Borrowers determine that no Taxes are payable in respect thereof, the Borrowers
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of
subsections (d) and (e) of this Section 2.12, the terms "United States" and
"United States person" shall have the meanings specified in Section 7701 of the
Internal Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of this Agreement in the case of each Initial Lender Party and on the date of
the Assignment and Acceptance pursuant to which it becomes a Lender Party in the
case of each other Lender Party, and from time to time thereafter as requested
in writing by the Borrowers (but only so long thereafter as such Lender Party
remains lawfully able to do so), provide each of the Administrative Agent and
the Borrowers with two original Internal Revenue Service forms 1001, 4224 or
form W-8 (and, if such Lender Party delivers a form W-8, a certificate
representing that such Lender Party is not a "bank" for purposes of Section
881(c) of the Internal Revenue Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrowers
and is not a controlled foreign corporation related to the Borrowers (within the
meaning of Section 864(d)(4) of the Internal Revenue Code)), as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender Party is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the
Notes or, in the case of a Lender Party providing a form W-8, certifying that
such Lender Party is a foreign corporation, partnership, estate or trust. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement indicate a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; provided, however, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.12 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001,
4224 or W-8 (or the related certificate described above), that the applicable
Lender Party reasonably considers to be confidential, such Lender Party shall
give notice thereof to the Borrowers and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed to
provide the Borrowers with the appropriate form described in subsection (e)
above (other than if such failure is due to a change in law occurring after the
date on which a form originally was required to be provided or if such form
44
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c) of this Section
2.12 with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrowers shall
take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable pursuant to
this Section 2.12 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would avoid the need
for, or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender Party, be
disadvantageous to such Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall obtain at
any time any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise, other than as a result of an assignment
pursuant to Section 9.07) (a) on account of Obligations due and payable to such
Lender Party hereunder and under the Notes at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations due and
payable to such Lender Party at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time) of payments on account of the Obligations due and payable to all
Lender Parties hereunder and under the Notes at such time obtained by all the
Lender Parties at such time or (b) on account of Obligations owing (but not due
and payable) to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender Party at such time to (ii) the aggregate
amount of the Obligations owing (but not due and payable) to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lender Parties hereunder and
under the Notes at such time obtained by all of the Lender Parties at such time,
such Lender Party shall forthwith purchase from the other Lender Parties such
interests or participating interests in the Obligations due and payable or owing
to them, as the case may be, as shall be necessary to cause such purchasing
Lender Party to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered. Each
Borrower agrees that any Lender Party so purchasing an interest or participating
interest from another Lender Party pursuant to this Section 2.13 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such interest or participating interest,
as the case may be, as fully as if such Lender Party were the direct creditor of
such Borrower in the amount of such interest or participating interest, as the
case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances and issuances
of Letters of Credit shall be available (and the Borrowers agree that they shall
45
use such proceeds and Letters of Credit) solely for the following: (a) in the
case of the Tranche A Term Advances, (i) to pay transaction costs in connection
with the negotiation, syndication, execution and delivery of the Loan Documents;
(ii) the purchase of certain receivables (other than Excluded Receivables) from
ICG Telecom Group, Inc. and its Subsidiaries, subject to a maximum purchase
price of $50,000,000, (b) in the case of the Term Advances, to finance the cost
(including, without limitation, with respect to the cost of design, development,
acquisition construction, installation, improvement, transportation or
integration), to acquire equipment, inventory, assets, services and related
costs in connection with the Internet Service Business or Telecommunications
Business (including, without limitation, acquisitions by way of acquisitions of
real property, leasehold improvements, licenses, rights-of-use, Capitalized
Leases, installment sales and acquisitions of the capital stock of an entity
that becomes a Restricted Subsidiary to the extent of the fair market value of
the equipment, inventory or assets so acquired (but excluding goodwill)) and (c)
in the case of the Working Capital Facility, for working capital purposes.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one time,
(i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting Lender
shall owe a Defaulted Advance to the Appropriate Borrower and (iii) such
Borrower shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then such Borrower
may, so long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise apply the
Obligation of it to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Appropriate Borrower shall so set
off and otherwise apply its obligation to make any such payment against the
obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by such Borrower
shall constitute for all purposes of this Agreement and the other Loan Documents
an Advance by such Defaulting Lender made on the date of such setoff. Such
Advance shall be considered, for all purposes of this Agreement, to comprise
part of the Borrowing in connection with which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01, even if the
other Advances comprising such Borrowing shall be Eurodollar Rate Advances on
the date such Advance is deemed to be made pursuant to this subsection (a). The
Appropriate Borrower shall notify the Administrative Agent at any time such
Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Appropriate Borrower to or for the account of such Defaulting
Lender which is paid by such Borrower, after giving effect to the amount set off
and otherwise applied by such Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount to
any Agent or any of the other Lender Parties and (iii) the Borrowers shall make
any payment hereunder or under any other Loan Document to the Administrative
Agent for the account of such Defaulting Lender, then the Administrative Agent
may, on its behalf or on behalf of such other Agents or such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by any of such Borrowers to or for the account of such
Defaulting Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. In the event that the Administrative
46
Agent shall so apply any such amount to the payment of any such Defaulted Amount
on any date, the amount so applied by the Administrative Agent shall constitute
for all purposes of this Agreement and the other Loan Documents payment, to such
extent, of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Agents or such other
Lender Parties, ratably in accordance with the respective portions of such
Defaulted Amounts payable at such time to the Administrative Agent, such other
Agents and such other Lender Parties and, if the amount of such payment made by
the Borrowers shall at such time be insufficient to pay all Defaulted Amounts
owing at such time to the Administrative Agent, such other Agents and such other
Lender Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to the
Agents, ratably in accordance with such respective Defaulted Amounts then
owing to the Agents; and
(ii) second, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrowers for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted Advance
or a Defaulted Amount and (iii) the Borrowers, any Agent or any other Lender
Party shall be required to pay or distribute any amount hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then the
Borrowers or such Agent or such other Lender Party shall pay such amount to the
Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in such
account as the Administrative Agent shall designate in writing to the Borrowers
and the Defaulting Lender, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be the
Administrative Agent's standard terms applicable to escrow accounts maintained
with it. Any interest credited to such account from time to time shall be held
by the Administrative Agent in escrow under, and applied by the Administrative
Agent from time to time in accordance with the provisions of, this subsection
(c). The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Lender
Party, as and when such Advances or amounts are required to be made or paid and,
if the amount so held in escrow shall at any time be insufficient to make and
pay all such Advances and amounts required to be made or paid at such time, in
the following order of priority:
47
(i) first, to the Agents for any amounts then due and payable by such
Defaulting Lender to the Agents hereunder, ratably in accordance with such
amounts then due and payable to the Agents;
(ii) second, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iii) third, to the Borrowers for any Advance then required to be made
by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this Section
2.15 are in addition to other rights and remedies that the Borrowers may have
against such Defaulting Lender with respect to any Defaulted Advance and that
any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
(e) Notwithstanding anything in this Section 2.15 to the contrary, upon any
payment by the Borrowers hereunder or under any other Loan Documents for the
account of a Defaulting Lender, the Administrative Agent and the Defaulting
Lender shall treat such payment as having been applied in the manner in which
the Borrower intended for purposes of calculating interest or commitment fees
owed by the Borrowers.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit. The
obligation of each Lender to make an Advance or of the Issuing Bank to issue a
Letter of Credit on the occasion of the Initial Extension of Credit hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
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(a) The Administrative Agent shall have received on or before the day
of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Lender Parties (unless otherwise specified) and (except for the Notes) in
sufficient copies for each Lender Party:
(i) The Notes payable to the Lenders or their registered assigns.
(ii) A security agreement in substantially the form of Exhibit D
hereto (together with each other security agreement and security
agreement supplement delivered pursuant to Section 5.01(j), in each
case as amended, the "Security Agreement"), duly executed by each Loan
Party thereto;
(A) certificates representing the Pledged Shares referred to
therein accompanied by undated stock powers executed in blank and
instruments evidencing the Pledged Debt indorsed in blank,
(B) acknowledgment copies or stamped receipt copies of
proper financing statements, duly filed on or before the day of
the Initial Extension of Credit under the Uniform Commercial Code
of all jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the first
priority liens and security interests created under the Security
Agreement, covering the Collateral described in the Security
Agreement,
(C) completed requests for information, dated on or before
the date of the Initial Extension of Credit, listing the
financing statements referred to in clause (B) above and all
other effective financing statements filed in the jurisdictions
referred to in clause (B) above that name any Loan Party as
debtor, together with copies of such other financing statements,
(D) evidence of the completion of all other recordings and
filings of or with respect to the Security Agreement that the
Administrative Agent may deem necessary or desirable in order to
perfect and protect the Liens created thereby,
(E) evidence of the insurance required by the terms of the
Security Agreement,
(F) copies of the Assigned Agreements referred to in the
Security Agreement, together with a consent to such assignment,
in substantially the form of Exhibit B to the Security Agreement,
duly executed by each party to such Assigned Agreements other
than the Loan Parties,
(G) the Pledged Account Letters referred to in the Security
Agreement, duly executed by each Pledged Account Bank referred to
in the Security Agreement, and
49
(H) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests created
under the Security Agreement have been taken (including, without
limitation, receipt of duly executed payoff letters, UCC-3
termination statements and landlords' and bailees' waiver and
consent agreements).
(iii) A guaranty in substantially the form of Exhibit E hereto
(together with each other guaranty and guaranty supplement delivered
pursuant to Section 5.01(j), in each case as amended, the "Subsidiary
Guaranty"), duly executed by each Subsidiary Guarantor.
(iv) A guaranty duly executed by the Parent.
(v) Deeds of trust, trust deeds, mortgages, leasehold mortgages
and leasehold deeds of trust in form and substance satisfactory to the
Administrative Agent and covering the properties listed on Schedules
4.01(v) and 4.01(w) hereto (together with the Assignments of Leases
and Rents referred to therein and each other mortgage delivered
pursuant to Section 5.01(j), in each case as amended, the
"Mortgages"), duly executed by the appropriate Loan Party, together
with:
(A) evidence that counterparts of the Mortgages have been
duly recorded on or before the day of the Initial Extension of
Credit in all filing or recording offices that the Administrative
Agent may deem necessary or desirable in order to create a valid
first and subsisting Lien on the property described therein in
favor of the Collateral Agent for the benefit of the Secured
Parties and that all filing and recording taxes and fees have
been paid,
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "Mortgage
Policies") in form and substance, with endorsements and in amount
acceptable to the Administrative Agent, issued, coinsured and
reinsured by title insurers acceptable to the Administrative
Agent, insuring the Mortgages to be valid first and subsisting
Liens on the real property described therein, free and clear of
all defects (including, but not limited to, mechanics' and
materialmen's Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other affirmative insurance
(including endorsements for future advances under the Loan
Documents and for mechanics' and materialmen's Liens) and such
coinsurance and direct access reinsurance as the Administrative
Agent may deem necessary or desirable,
(C) American Land Title Association form surveys, dated no
more than 30 days before the day of the Initial Extension of
Credit, certified to the Administrative Agent and the issuer of
the Mortgage Policies in a manner satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the real property described in
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such surveys is located and acceptable to the Administrative
Agent, showing all buildings and other improvements, any off-site
improvements, the location of any easements, parking spaces,
rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other
than encroachments and other defects acceptable to the
Administrative Agent,
(D) engineering, soils and other reports as to the real
properties described in the Mortgages, in form and substance and
from professional firms acceptable to the Administrative Agent,
(E) the Assignments of Leases and Rents referred to in the
Mortgages, duly executed by the appropriate Loan Party,
(F) such consents and agreements of lessors and other third
parties, and such estoppel letters and other confirmations, as
the Administrative Agent may deem necessary or desirable,
(G) evidence of the insurance required by the terms of the
Mortgages,
(H) evidence that all other action that the Administrative
Agent may deem necessary or desirable in order to create valid
first and subsisting Liens on the property described in the
Mortgages has been taken.
(vi) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the Transaction and each
Transaction Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with respect to
the Transaction and each Transaction Document to which it is or is to
be a party.
(vii) To the extent such Secretary of State customarily provides
such certificates, a copy of a certificate of the Secretary of State
of the jurisdiction of incorporation of each Loan Party, dated
reasonably near the date of the Initial Extension of Credit,
certifying (A) as to a true and correct copy of the charter of such
Loan Party and each amendment thereto on file in such Secretary's
office and (B) that (1) such amendments are the only amendments to
such Loan Party's charter on file in such Secretary's office and (2)
such Loan Party has paid all franchise taxes, if any, to the date of
such certificate and (C) such Loan Party is duly incorporated and in
good standing or presently subsisting under the laws of the State of
the jurisdiction of its incorporation.
(viii) To the extent such Secretary of State customarily provides
such certificates, a copy of a certificate of the Secretary of State
of each relevant jurisdiction, dated reasonably near the date of the
Initial Extension of Credit, stating that each Loan Party is duly
qualified and in good standing as a foreign corporation in such State
and has filed all annual reports required to be filed to the date of
such certificate.
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(ix) A certificate of each Loan Party, signed on behalf of such
Loan Party by its President or a Vice President and its Secretary or
any Assistant Secretary, dated the date of the Initial Extension of
Credit (the statements made in which certificate shall be true on and
as of the date of the Initial Extension of Credit), certifying as to
(A) the absence of any amendments to the charter of such Loan Party
since the date of the Secretary of State's certificate referred to in
Section 3.01(a)(viii), (B) a true and correct copy of the bylaws of
such Loan Party as in effect on the date on which the resolutions
referred to in Section 3.01(a)(vi) were adopted and on the date of the
Initial Extension of Credit, (C) the due incorporation and good
standing or valid existence of such Loan Party as a corporation
organized under the laws of the jurisdiction of its incorporation, and
the absence of any proceeding for the dissolution or liquidation of
such Loan Party, (D) the truth of the representations and warranties
contained in the Loan Documents as though made on and as of the date
of the Initial Extension of Credit and (E) the absence of any event
occurring and continuing, or resulting from the Initial Extension of
Credit, that constitutes a Default.
(x) A certificate of the Secretary or an Assistant Secretary of
each Loan Party certifying the names and true signatures of the
officers of such Loan Party authorized to sign each Transaction
Document to which it is or is to be a party and the other documents to
be delivered hereunder and thereunder.
(xi) Certified copies of each of the Related Documents, duly
executed by the parties thereto and in form and substance satisfactory
to the Lender Parties, together with all agreements, instruments and
other documents delivered in connection therewith as the
Administrative Agent shall request.
(xii) Certificates, in substantially the form of Exhibit F
hereto, attesting to the Solvency of each Loan Party before and after
giving effect to the Transaction, from its Chief Financial Officer.
(xiii) Evidence of insurance naming the Collateral Agent as
additional insured and loss payee with such responsible and reputable
insurance companies or associations, and in such amounts and covering
such risks, as is satisfactory to the Lender Parties.
(xiv) Certified copies of all Material Contracts of each Loan
Party and its Subsidiaries as the Administrative Agent shall request.
(xv) A Notice of Borrowing or Notice of Issuance, as applicable,
and a Borrowing Base Certificate relating to the Initial Extension of
Credit.
(xvi) Such financial, business and other information regarding
each Loan Party and its Subsidiaries as the Lender Parties shall have
requested, including, without limitation, information as to possible
contingent liabilities, tax matters, environmental matters,
obligations under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated December 31,
1998, interim financial statements dated the end of the most recent
52
fiscal quarter for which financial statements are available (or, in
the event the Lender Parties' due diligence review reveals material
changes since such financial statements, as of a later date within 45
days of the day of the Initial Extension of Credit), pro forma
financial statements as to the Borrower and forecasts prepared by
management of the Company, in form and substance satisfactory to the
Lender Parties, of balance sheets, income statements and cash flow
statements on a quarterly basis for the first year following the day
of the Initial Extension of Credit and on an annual basis for each
year thereafter until December 31, 2004.
(xvii) A favorable opinion of Thelen Reid & Priest LLP, counsel
for the Loan Parties, in substantially the form of Exhibit G hereto
and as to such other matters as any Lender Party through the
Administrative Agent may reasonably request.
(xviii) Favorable opinion of Sherman & Howard, local counsel to
the Loan Parties in the State of Colorado, in substantially the form
of Exhibit H hereto or in such other forms as any Lender Party through
the Administrative Agent may reasonably request.
(b) The Lender Parties shall be satisfied with the corporate and legal
structure and capitalization of each Loan Party and each of its
Subsidiaries the Equity Interests in which Subsidiaries is being pledged
pursuant to the Loan Documents, including the terms and conditions of the
charter, bylaws and each class of Equity Interest in each Loan Party and
each such Subsidiary and of each agreement or instrument relating to such
structure or capitalization.
(c) Before giving effect to the transactions contemplated by the
Transaction Documents, there shall have occurred no Material Adverse Change
since December 31, 1998.
(d) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could be reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the transactions contemplated
thereby.
(e) All governmental and third party consents and approvals necessary
in connection with the Transaction Documents shall have been obtained
(without the imposition of any conditions that are not acceptable to the
Lender Parties) and shall remain in effect; all applicable waiting periods
in connection with the transactions contemplated by the Transaction
Documents shall have expired without any action being taken by any
competent authority, and no law or regulation shall be applicable in the
judgment of the Lender Parties, in each case that restrains, prevents or
imposes materially adverse conditions upon the Transaction or the rights of
the Loan Parties or their Subsidiaries freely to transfer or otherwise
dispose of, or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
(f) The Lender Parties shall have completed a due diligence
investigation of the Parent and its Subsidiaries in scope, and with
results, satisfactory to the Lender Parties, and shall have been given such
53
access to the management, records, books of account, contracts and
properties of the Parent and its Subsidiaries and shall have received such
financial, business and other information regarding each of the foregoing
persons as they shall have requested, including, without limitation,
information as to possible contingent liabilities, tax matters, collective
bargaining agreements and other arrangements with employees, annual
financial statements dated December 31, 1998, interim financial statements
dated the end of the most recent fiscal quarter for which financial
statements are available (or, in the event the Lenders' due diligence
review reveals material changes since such financial statements, as of a
later date within 45 days of the Effective Date), pro forma consolidated
financial statements as the Borrowers, the Parent and their Subsidiaries,
and forecasts prepared by management of the Borrowers and the Parent, in a
form satisfactory to the Lender Parties, of balance sheets and income
statements, and nothing shall have come to the attention of the Lender
Parties during the course of such due diligence investigation to lead them
to believe that any information provided to the Lender Parties was or has
become misleading, incorrect or incomplete in any material respect.
(g) The Borrower shall have paid all accrued fees of the Agents and
the Lender Parties and all accrued expenses of the Agents (including the
accrued fees and expenses of counsel to the Administrative Agent.
(h) The Related Documents shall be in full force and effect.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance and
Renewal. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank Lender pursuant to
Section 2.03(c) on the occasion of each Borrowing (including the initial
Borrowing), and the obligation of the Issuing Bank to issue a Letter of Credit
(including the initial issuance) or renew a Letter of Credit, shall be subject
to the further conditions precedent that on the date of such Borrowing or
issuance or renewal (a) the following statements shall be true and the
acceptance by the Borrower of the proceeds of such Borrowing or of such Letter
of Credit or the renewal of such Letter of Credit shall constitute a
representation and warranty by the Borrower that both on the date of such notice
and on the date of such Borrowing or issuance or renewal such statements are
true):
(i) the representations and warranties contained in each Loan Document
are correct on and as of such date, before and after giving effect to such
Borrowing or issuance or renewal and to the application of the proceeds
therefrom, as though made on and as of such date, other than any such
representations or warranties that, by their terms, refer to a specific
date other than the date of such Borrowing or issuance or renewal, in which
case as of such specific date;
(ii) no Default has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom; and
(iii) for each Advance or issuance or renewal of any Letter of Credit,
the sum of the Loan Values of the Eligible Collateral exceeds the aggregate
principal amount of the Advances plus the aggregate Available Amount of all
Letters of Credit to be outstanding after giving effect to such Advance or
issuance or renewal, respectively;
54
and (b) the Administrative Agent shall have received (i) a Borrowing Base
Certificate signed by a duly authorized officer of the Appropriate Borrower
dated the date of such Borrowing or issuance or renewal; and (ii) such other
approvals, opinions or documents as any Appropriate Lender through the
Administrative Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Parent
and each Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which it
owns or leases property or in which the conduct of its business requires it
to so qualify or be licensed except where the failure to so qualify or be
licensed could not be reasonably likely to have a Material Adverse Effect
and (iii) has all requisite corporate power and authority (including,
without limitation, all governmental licenses, permits and other approvals)
to own or lease and operate its properties and to carry on its business as
now conducted and as proposed to be conducted. All of the outstanding
Equity Interests in each Borrower has been validly issued, is fully paid
and non-assessable and is owned by the Parent free and clear of all Liens,
except those created under the Collateral Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of its Equity Interests authorized, and the
number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by such Loan
Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Equity Interests in each Loan Party's
Subsidiaries has been validly issued, are fully paid and non-assessable and
are owned by such Loan Party or one or more of its Subsidiaries free and
clear of all Liens, except those created under the Collateral Documents.
55
(c) The execution, delivery and performance by each Loan Party of each
Transaction Document to which it is or is to be a party, and the
consummation of the Transaction, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and do
not (i) contravene such Loan Party's charter or bylaws, (ii) violate any
law, rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or result
in the breach of, or constitute a default or require any payment to be made
under, any contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument binding on or affecting any Loan Party, any of
its Subsidiaries or any of their properties in such a manner as would be
reasonably likely to have a Material Adverse Effect or (iv) except for the
Liens created under the Loan Documents, result in or require the creation
or imposition of any Lien upon or with respect to any of the properties of
any Loan Party or any of its Subsidiaries. No Loan Party or any of its
Subsidiaries is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in breach of
any such contract, loan agreement, indenture, mortgage, deed of trust,
lease or other instrument, the violation or breach of which could be
reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body or any other
third party is required for (i) the due execution, delivery, recordation,
filing or performance by any Loan Party of any Transaction Document to
which it is or is to be a party, or for the consummation of the
Transaction, (ii) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (iii) the perfection or maintenance
of the Liens created under the Collateral Documents (including the first
priority nature thereof) or (iv) the exercise by any Agent or any Lender
Party of its rights under the Loan Documents or the remedies in respect of
the Collateral pursuant to the Collateral Documents, except for the
authorizations, approvals, actions, notices and filings referred to herein
or listed on Schedule 4.01(d) hereto, all of which have been duly obtained,
taken, given or made and are in full force and effect. All applicable
waiting periods in connection with the Transaction have expired without any
action having been taken by any competent authority restraining, preventing
or imposing materially adverse conditions upon the Transaction or the
rights of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now owned or
hereafter acquired by any of them.
(e) This Agreement has been, and each other Transaction Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party party thereto. This Agreement is, and each other Transaction
Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such Loan
Party in accordance with its terms.
(f) There is no action, suit, investigation, litigation or proceeding
affecting any Loan Party or any of its Subsidiaries, including any
Environmental Action, pending or threatened before any court, governmental
agency or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of any Transaction Document or the consummation of the
Transaction.
56
(g) The Consolidated and consolidating balance sheets of the Parent
and its Subsidiaries as at December 31, 1998, and the related Consolidated
and consolidating statements of income and Consolidated statement of cash
flows of the Parent and its Subsidiaries for the fiscal year then ended,
accompanied by an unqualified opinion of KPMG Peat Marwick LLP, independent
public accountants, and the Consolidated and consolidating unaudited
balance sheets of the Parent and its Subsidiaries as at June 30, 1999, and
the related unaudited Consolidated and consolidating statements of income
and Consolidated statement of cash flows of the Parent and its Subsidiaries
for the six months then ended, duly certified by the Chief Financial
Officer of the Parent, copies of which have been furnished to each Lender
Party, in each case fairly present, subject, in the case of said balance
sheet as at June 30, 1999, and said statements of income and cash flows for
the six months then ended, to year-end audit adjustments, the Consolidated
and consolidating financial condition of the Parent and its Subsidiaries as
at such dates and the Consolidated and consolidating results of operations
of the Parent and its Subsidiaries for the periods ended on such dates, all
in accordance with generally accepted accounting principles applied on a
consistent basis, and since December 31, 1998, there has been no Material
Adverse Change.
(h) The Consolidated and consolidating forecasted balance sheets,
statements of income and statements of cash flows of the Parent and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(a)(xvi) or 5.03 were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were fair in light of the
conditions existing at the time of delivery of such forecasts, and
represented, at the time of delivery, the Parent's best estimate of its
future financial performance.
(i) Neither the Pre-Commitment Information nor any other information,
exhibit or report furnished by or on behalf of any Loan Party to any Agent
or any Lender Party in connection with the negotiation and syndication of
the Loan Documents or pursuant to the terms of the Loan Documents contained
any untrue statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading.
(j) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or drawings under any Letter of Credit 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.
(k) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any Loan
Party nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company"
or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
Neither the making of any Advances, nor the issuance of any Letters of
Credit, nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated by
the Transaction Documents, will violate any provision of any such Act or
any rule, regulation or order of the Securities and Exchange Commission
thereunder.
57
(l) Neither any Loan Party nor any of its Subsidiaries is a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that could
reasonably be expected to have a Material Adverse Effect.
(m) All filings and other actions necessary or desirable to perfect
and protect the security interest in the Collateral created under the
Collateral Documents have been duly made or taken and are in full force and
effect, and the Collateral Documents create in favor of the Collateral
Agent for the benefit of the Secured Parties a valid and, together with
such filings and other actions, perfected first priority security interest
in the Collateral, securing the payment of the Secured Obligations, and all
filings and other actions necessary or desirable to perfect and protect
such security interest have been duly taken. The Loan Parties are the legal
and beneficial owners of the Collateral free and clear of any Lien, except
for the liens and security interests created or permitted under the Loan
Documents.
(n) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(o) (i) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan.
(ii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service and furnished to the Lender Parties, is
complete and accurate and fairly presents the funding status of such Plan,
and since the date of such Schedule B there has been no material adverse
change in such funding status.
(iii) Neither any Loan Party nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan.
(iv) Neither any Loan Party 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, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(p) (i) The operations and properties of each Loan Party and each of
its Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could be
reasonably likely to (A) form the basis of an Environmental Action against
any Loan Party or any of its Subsidiaries or any of their properties that
could have a Material Adverse Effect or (B) cause any such property to be
subject to any restrictions on ownership, occupancy, use or transferability
under any Environmental Law.
(ii) None of the properties currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries is listed or proposed for listing
on the NPL or on the CERCLIS or any analogous foreign, state or local list
58
or is adjacent to any such property; there are no and never have been any
underground or aboveground storage tanks or any surface impoundments,
septic tanks, pits, sumps or lagoons in which Hazardous Materials are being
or have been treated, stored or disposed on any property currently owned or
operated by any Loan Party or any of its Subsidiaries or, to the best of
its knowledge, on any property formerly owned or operated by any Loan Party
or any of its Subsidiaries; there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan Party or
any of its Subsidiaries; and Hazardous Materials have not been released,
discharged or disposed of on any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries.
(iii) Neither any Loan Party nor any of its Subsidiaries is
undertaking, and has not completed, either individually or together with
other potentially responsible parties, any investigation or assessment or
remedial or response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental
or regulatory authority or the requirements of any Environmental Law; and
all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries have been disposed of
in a manner not reasonably expected to result in material liability to any
Loan Party or any of its Subsidiaries.
(q) (i) Neither any Loan Party nor any of its Subsidiaries is party to
any tax sharing agreement other than the Tax Sharing Agreement.
(ii) Except as disclosed on Schedule 4.01(q), (i) all tax returns,
statements, reports and forms (including estimated tax or information
returns) (collectively, the "Tax Returns") required to be filed with any
taxing authority by, or with respect to, each Loan Party and their
Subsidiaries have been timely filed in accordance with all applicable laws;
(ii) each Loan Party and their Subsidiaries has timely paid or made
adequate provision for payment of all taxes that are shown as due and
payable on Tax Returns that have been so filed or that are otherwise
required to be paid (including without limitation, assessments, interest
and penalties) and, as of the time of filing, each Tax Return was accurate
and complete and correctly reflected the facts regarding income, business,
assets, operations, activities and the status of each Loan Party and their
Subsidiaries (other than taxes which are being contested in good faith and
for which adequate reserves are reflected on the financial statements
delivered hereunder) and (iii) each Loan Party and its Subsidiaries have
made adequate provision for all taxes payable by such Loan Party and its
Subsidiaries for which no Tax Return has yet been filed or which are
otherwise due.
(iii) Set forth on Part I of Schedule 4.01(q) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each Loan
Party and each of its Subsidiaries and Affiliates for which Federal income
tax returns have been filed and for which the expiration of the applicable
statute of limitations for assessment or collection has not occurred by
reason of extension or otherwise (an "Open Year").
(iv) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and each
of its Subsidiaries and Affiliates proposed by the Internal Revenue Service
with respect to Open Years does not exceed $10,000,000. Set forth on Part
II of Schedule 4.01(q) hereto is a complete and accurate description, as of
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the date hereof, of each such item that separately, for all such Open
Years, together with applicable interest and penalties, exceeds $1,000,000.
No issues have been raised by the Internal Revenue Service in respect of
Open Years that, in the aggregate, could be reasonably likely to have a
Material Adverse Effect.
(v) The aggregate unpaid amount, as of the date hereof, of adjustments
to the state, local and foreign tax liability of each Loan Party and its
Subsidiaries and Affiliates proposed by all state, local and foreign taxing
authorities (other than amounts arising from adjustments to Federal income
tax returns) does not exceed $10,000,000. No issues have been raised by
such taxing authorities that, in the aggregate, could be reasonably likely
to have a Material Adverse Effect.
(r) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not covered
by insurance) that could be reasonably likely to have a Material Adverse
Effect.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list of all Existing Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list of all Liens on the property or assets of any Loan Party or any of its
Subsidiaries, showing as of the date hereof the lienholder thereof, the
principal amount of the obligations secured thereby and the property or
assets of such Loan Party or such Subsidiary subject thereto.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list of all real property owned by any Loan Party or any of its
Subsidiaries, showing as of the date hereof the street address, county or
other relevant jurisdiction, state, record owner and book and estimated
fair value thereof. Each Loan Party or such Subsidiary has good, marketable
and insurable fee simple title to such real property, free and clear of all
Liens, other than Liens created or permitted by the Loan Documents.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all leases of real property under which any Loan Party or any of
its Subsidiaries is the lessee, showing as of the date hereof the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Each such lease is the
legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its Subsidiaries
on the date hereof, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list of all patents, trademarks, trade names, service marks and copyrights,
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and all applications therefor and licenses thereof, of each Loan Party or
any of its Subsidiaries, showing as of the date hereof the jurisdiction in
which registered, the registration number, the date of registration and the
expiration date.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries,
showing as of the date hereof the parties, subject matter and term thereof.
Each such Material Contract has been duly authorized, executed and
delivered by all parties thereto, has not been amended or otherwise
modified, is in full force and effect and is binding upon and enforceable
against all parties thereto in accordance with its terms, and there exists
no default under any Material Contract by any party thereto.
(z) Each Borrower has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including those affected by suppliers, vendors and customers) that could
be adversely affected by the risk that computer applications used by such
Borrower or any of its Subsidiaries (or suppliers, vendors and customers)
may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999 (the
"Year 2000 Problem"), (ii) developed a plan and timetable for addressing
the Year 2000 Problem on a timely basis and (iii) to date, implemented that
plan in accordance with such timetable. Based on the foregoing, each
Borrower believes that all computer applications (including those of its
suppliers, vendors and customers) that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on a timely
basis to be able to perform properly date-sensitive functions for all dates
before and after January 1, 2000 ("Year 2000 Compliant"), except to the
extent that a failure to do so could not reasonably be expected to have a
Material Adverse Effect.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each Loan Party will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable laws,
rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon
it or upon its property and (ii) all lawful claims that, if unpaid, might
by law become a Lien upon its property; provided, however, that neither the
Loan Parties nor any of their Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being contested
in good faith and by proper proceedings and as to which appropriate
reserves are being maintained.
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(c) Compliance with Environmental Laws. Comply, and cause each of its
Subsidiaries and all lessees and other Persons operating or occupying its
properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each of
its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
necessary to remove and clean up all Hazardous Materials from any of its
properties, in accordance with the requirements of all Environmental Laws;
provided, however, that neither the Loan Parties nor any of their
Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such risks
as is usually carried by companies engaged in similar businesses and owning
similar properties in the same general areas in which such Loan Party or
such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its existence,
legal structure, rights (charter and statutory), permits, licenses,
approvals, privileges and franchises (including, without limitation, any
permits, licenses, approvals, privileges and franchises issued to such Loan
Party by the FCC or any PUC); provided, however, that each Borrower and its
Subsidiaries may consummate any merger or consolidation permitted under
Section 5.02(d) and provided further that neither any Loan Party nor any of
its Subsidiaries shall be required to preserve any right, permit, license,
approval, privilege or franchise if the Board of Directors of such Loan
Party or such Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of such Loan Party or
such Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to such Loan Party, such Subsidiary
or the Lender Parties.
(f) Visitation Rights. At any reasonable time and from time to time,
permit any of the Agents or any of the Lender Parties, or any agents or
representatives thereof, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, such Loan
Party and any of its Subsidiaries, and to discuss the affairs, finances and
accounts of such Loan Party and any of its Subsidiaries with any of their
officers or directors and with their independent certified public
accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of
such Loan Party and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
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(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to such Loan Party or such Subsidiary than
it would obtain in a comparable arm's-length transaction with a Person not
an Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x) the
request of the Collateral Agent following the occurrence and during the
continuance of a Default, (y) the formation or acquisition of any new
direct or indirect Subsidiaries by any Loan Party or (z) the acquisition of
any property by any Loan Party, and such property, in the judgment of the
Collateral Agent, shall not already be subject to a perfected first
priority security interest in favor of the Collateral Agent for the benefit
of the Secured Parties, then each Loan Party shall, in each case at the
such Loan Party's expense:
(i) in connection with the formation or acquisition of a
Subsidiary, within 10 days after such formation or acquisition, cause
each such Subsidiary, and cause each direct and indirect parent of
such Subsidiary (if it has not already done so), to duly execute and
deliver to the Collateral Agent a guaranty or guaranty supplement, in
form and substance satisfactory to the Collateral Agent, guaranteeing
the other Loan Parties' obligations under the Loan Documents,
(ii) within 10 days after such request, formation or acquisition,
furnish to the Collateral Agent a description of the real and personal
properties of the Loan Parties and their respective Subsidiaries in
detail satisfactory to the Collateral Agent,
(iii) within 15 days after such request, formation or
acquisition, duly execute and deliver, and cause each such Subsidiary
(other than ICG 161 and ICG Corporate Headquarters) and each direct
and indirect parent of such Subsidiary (if it has not already done so)
to duly execute and deliver, to the Collateral Agent mortgages,
pledges, assignments, security agreement supplements and other
security agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all the
Obligations of the applicable Loan Party, such Subsidiary or such
parent, as the case may be, under the Loan Documents and constituting
Liens on all such properties,
(iv) within 30 days after such request, formation or acquisition,
take, and cause such Subsidiary (other than ICG 161 and ICG Corporate
Headquarters) or such parent to take, whatever action (including,
without limitation, the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Collateral Agent to vest in the
Collateral Agent (or in any representative of the Collateral Agent
designated by it) valid and subsisting Liens on the properties
purported to be subject to the mortgages, pledges, assignments,
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security agreement supplements and security agreements delivered
pursuant to this Section 5.01(j), enforceable against all third
parties in accordance with their terms,
(v) within 70 days after such request, formation or acquisition,
deliver to the Collateral Agent, upon the request of the Collateral
Agent in its sole discretion, a signed copy of a favorable opinion,
addressed to the Collateral Agent and the other Secured Parties, of
counsel for the Loan Parties reasonably acceptable to the Collateral
Agent as to the matters contained in clauses (i), (iii) and (iv) above
(subject to customary limitations), as to such guaranties, guaranty
supplements, mortgages, pledges, assignments, security agreement
supplements and security agreements being legal, valid and binding
obligations of each Loan Party thereto enforceable in accordance with
their terms, as to the matters contained in clause (iv) above, as to
such recordings, filings, notices, endorsements and other actions
being sufficient to create valid perfected Liens on such properties,
and as to such other matters as the Collateral Agent may reasonably
request,
(vi) as promptly as practicable after such request, formation or
acquisition, deliver, upon the request of the Collateral Agent in its
sole discretion, to the Collateral Agent with respect to each parcel
of real property owned or held by the entity that is the subject of
such request, formation or acquisition title reports, surveys and
engineering, soils and other reports, and environmental assessment
reports, each in scope, form and substance satisfactory to the
Collateral Agent, provided, however, that to the extent that any Loan
Party or any of its Subsidiaries shall have otherwise received any of
the foregoing items with respect to such real property, such items
shall, promptly after the receipt thereof, be delivered to the
Collateral Agent,
(vii) upon the occurrence and during the continuance of a
Default, promptly cause to be deposited any and all cash dividends
paid or payable to it or any of its Subsidiaries from any of its
Subsidiaries from time to time into the Cash Collateral Account, and
with respect to all other dividends paid or payable to it or any of
its Subsidiaries from time to time, promptly execute and deliver, or
cause such Subsidiary to promptly execute and deliver, as the case may
be, any and all further instruments and take or cause such Subsidiary
to take, as the case may be, all such other action as the Collateral
Agent may deem necessary or desirable in order to obtain and maintain
from and after the time such dividend is paid or payable a perfected,
first priority lien on and security interest in such dividends, and
(viii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Collateral Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, such guaranties, mortgages, pledges,
assignments, security agreement supplements, intellectual property
security agreement supplements and security agreements.
(k) Further Assurances. (i) Promptly upon request by any Agent, or any
Lender Party through the Administrative Agent, correct, and cause each of
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its Subsidiaries promptly to correct, any material defect or error that may
be discovered in any Loan Document or in the execution, acknowledgment,
filing or recordation thereof, and
(ii) Promptly upon request by any Agent, or any Lender Party through
the Administrative Agent, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register any and all such further
acts, deeds, conveyances, pledge agreements, mortgages, deeds of trust,
trust deeds, assignments, financing statements and continuations thereof,
termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as any Agent, or any Lender Party through
the Administrative Agent, may reasonably require from time to time in order
to (A) carry out more effectively the purposes of the Loan Documents, (B)
to the fullest extent permitted by applicable law, subject any Loan Party's
or any of its Subsidiaries' (other than ICG 161 and ICG Corporate
Headquarters) properties, assets, rights or interests to the Liens now or
hereafter intended to be covered by any of the Collateral Documents, (C)
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created thereunder
and (D) assure, convey, grant, assign, transfer, preserve, protect and
confirm more effectively unto the Secured Parties the rights granted or now
or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan
Document to which any Loan Party or any of its Subsidiaries is or is to be
a party, and cause each of its Subsidiaries to do so.
(l) Performance of Related Documents. Perform and observe, and cause
each of its Subsidiaries to perform and observe, all of the terms and
provisions of each Related Document to be performed or observed by it,
maintain each such Related Document in full force and effect, enforce such
Related Document in accordance with its terms, take all such action to such
end as may be from time to time requested by the Administrative Agent and,
upon request of the Administrative Agent, make to each other party to each
such Related Document such demands and requests for information and reports
or for action as any Loan Party or any of its Subsidiaries is entitled to
make under such Related Document.
(m) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real property
to which such Loan Party or any of its Subsidiaries is a party, keep such
leases in full force and effect and not allow such leases to lapse or be
terminated or any rights to renew such leases to be forfeited or cancelled,
notify the Administrative Agent of any default by any party with respect to
such leases and cooperate with the Administrative Agent in all respects to
cure any such default, and cause each of its Subsidiaries to do so, except
where the failure to do so either individually or in the aggregate, could
not be reasonably likely to have a Material Adverse Effect.
(n) Interest Rate Hedging. If the three month Eurodollar Rate exceeds
9% per annum for 15 consecutive Business Days at any time, enter into and
maintain at all times thereafter, interest rate Hedge Agreements with
Persons acceptable to the Administrative Agent and the Required Lenders,
covering a notional amount of not less than 50% of the Commitments under
all of the Facilities at such time.
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(o) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each such Material Contract in full force and effect,
enforce each such Material Contract in accordance with its terms, take all
such action to such end as may be from time to time reasonably requested by
the Administrative Agent and, upon request of the Administrative Agent,
make to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or any
of its Subsidiaries is entitled to make under such Material Contract, and
cause each of its Subsidiaries to do so, except, in any case, where the
failure to do so, either individually or in the aggregate, could not be
reasonably likely to have a Material Adverse Effect.
(p) Lease Arrangements. Insure that ICG Equipment is lessor under
master leases and other lease arrangements in respect of which the lease
payments, together with the residual value of the property, plant and
equipment subject thereto, are sufficient to pay all amounts due and
payable during the term of this Agreement in respect of all Debt of the
Parent and its Subsidiaries.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, no Loan Party shall, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names any
Loan Party or any of its Subsidiaries as debtor, or sign or suffer to
exist, or permit any of its Subsidiaries to sign or suffer to exist, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its Subsidiaries to
assign, any accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof or required on the
Effective Date to be provided in the future and, in each case,
described on Schedule 4.01(u) hereto;
(iv) purchase money Liens upon or in property acquired or held by
any Borrower or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property or to secure
Debt incurred solely for the purpose of financing the acquisition of
any such property to be subject to such Liens, or Liens existing on
any such property at the time of acquisition (other than any such
Liens created in contemplation of such acquisition that do not secure
the purchase price), or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount; provided, however, that
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no such Lien shall extend to or cover any property other than the
property being acquired, and no such extension, renewal or replacement
shall extend to or cover any property not theretofore subject to the
Lien being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens permitted
by this clause (iv) shall not exceed the amount permitted under
Section 5.02(b)(iii)(B) at any time outstanding;
(v) Liens arising in connection with Capitalized Leases of any
Borrower or any of its Subsidiaries permitted under Section
5.02(b)(iii)(C); provided that no such Lien shall extend to or cover
any Collateral or assets other than the assets subject to such
Capitalized Leases;
(vi) Liens on property of a Person existing at the time such
Person is merged into or consolidated with such Borrower or any
Subsidiary of the Borrower or becomes a Subsidiary of such Borrower;
provided that such Liens were not created in contemplation of such
merger, consolidation or investment and do not extend to any assets
other than those of the Person merged into or consolidated with such
Borrower or such Subsidiary or acquired by such Borrower or such
Subsidiary; and
(vii) Liens in connection with Debt permitted under Section
5.02(b)(iii)(E); provided that no such Lien shall extend to or cover
any Collateral other than cash and Cash Equivalents in an amount equal
to the amount of such Debt.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of any Borrower,
(A) Debt in respect of Hedge Agreements designed to hedge
against fluctuations in interest rates or foreign exchange rates
incurred in the ordinary course of business and consistent with
prudent business practice.
(B) Debt owed to a wholly owned Subsidiary of such Borrower,
which Debt (x) shall, in the case of Debt owed to a Loan Party,
constitute Pledged Debt, (y) shall be on terms acceptable to the
Required Lenders and (z) shall be evidenced by promissory notes
in form and substance satisfactory to the Required Lenders and
such promissory notes shall, in the case of Debt owed to a Loan
Party, be pledged as security for the Obligations of the holder
thereof under the Loan Documents to which such holder is a party
and delivered to the Collateral Agent pursuant to the terms of
the Security Agreement.
(ii) in the case of any Subsidiary of any Borrower, Debt owed to
such Borrower or to a wholly owned Subsidiary of such Borrower,
provided that, in each case, such Debt (x) shall, in the case of Debt
owed to a Loan Party, constitute Pledged Debt, (y) shall be on terms
acceptable to the Required Lenders and (z) shall be evidenced by
promissory notes in form and substance satisfactory to the Required
Lenders and such promissory notes shall, in the case of Debt owed to a
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Loan Party, be pledged as security for the Obligations of the holder
thereof under the Loan Documents to which such holder is a party and
delivered to the Collateral Agent pursuant to the terms of the
Security Agreement; and
(iii) in the case of the Parent and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by Section 5.02(a)(iv)
not to exceed in the aggregate $25,000,000 during any consecutive
12-month period,
(C) Capitalized Leases of any Borrower or any of its
Subsidiaries not to exceed in the aggregate $385,000,000 at any
time outstanding (taking into account any reductions in such
Capitalized Leases).
(D) the Existing Debt, and
(E) Debt in respect of letters of credit in an aggregate
principal amount at any time outstanding not to exceed
$10,000,000; and
(F) other unsecured Debt in an aggregate principal amount
not to exceed $350,000,000 at any one time outstanding.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or permit any of its Subsidiaries to do any of
the foregoing, except that any Subsidiary of each Borrower may merge into
or consolidate with any other Subsidiary of each Borrower, provided that,
in the case of any such merger or consolidation, the Person formed by such
merger or consolidation shall be a wholly owned Subsidiary of each
Borrower, provided further that, in the case of any such merger or
consolidation to which a Subsidiary Guarantor is a party, the Person formed
by such merger or consolidation shall become a Subsidiary Guarantor and
provided, however, that in each case, immediately after giving effect
thereto, no event shall occur and be continuing that constitutes a Default.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase,
lease or otherwise acquire any assets other than Inventory to be sold or
leased in the ordinary course of its business, except:
(i) sales or leases of Inventory in the ordinary course of its
business;
(ii) sales of assets for cash and Cash Equivalents and for fair
value in an aggregate amount not to exceed $15,000,000 in any Fiscal
Year;
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(iii) the sale of any asset by each Borrower or any Subsidiary
(other than a bulk sale of Inventory and a sale of receivables other
than delinquent accounts for collection purposes only) so long as (A)
the purchase price paid to each Borrower or such Subsidiary for such
asset shall be no less than the fair market value of such asset at the
time of such sale, (B) the purchase price for such asset shall be paid
to each Borrower or such Subsidiary solely in cash and (C) the
aggregate purchase price paid to each Borrower and all of its
Subsidiaries for such asset and all other assets sold by each Borrower
and its Subsidiaries during the same Fiscal Year pursuant to this
clause (iii) shall not exceed $25,000,000; and
(iv) sales of all of the outstanding capital stock of, or assets
of, each of ICG Satellite Services, Inc., ICG Fiber Optic
Technologies, Inc. and each of their respective Subsidiaries.
provided that in the case of sales of assets pursuant to clause (iii)
above, each Borrower shall, on the date of receipt by any Loan Party or any
of its Subsidiaries of the Net Cash Proceeds from such sale, prepay the
Advances pursuant to, and in the amount and order of priority set forth in,
Section 2.06(b)(ii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, except:
(i) Investments by the Parent and its Subsidiaries in their
Subsidiaries outstanding on the date hereof and additional investments
in wholly owned Subsidiaries of a Borrower now existing or organized
hereafter, provided that any such Subsidiary has become a Subsidiary
Guarantor to the extent required by Section 5.01(j).
(ii) loans and advances to employees in the ordinary course of
the business of each Borrower and its Subsidiaries as presently
conducted in an aggregate principal amount not to exceed $1,000,000 at
any time outstanding;
(iii) Investments by each Borrower in Hedge Agreements permitted
under Section 5.02(b)(i)(A);
(iv) Investments existing on the date hereof and described on
Schedule 4.01(x) hereto;
(v) Investments consisting of intercompany Debt permitted under
Section 5.02(b);
(vi) Investments consisting of the purchase by the Borrowers of
certain receivables (other than Excluded Receivables) from ICG Telecom
Group, Inc. and its Subsidiaries on market terms reasonably
satisfactory to the Required Lenders; and
(vii) other Investments in an aggregate amount invested not to
exceed $50,000,000 and Investments made solely with Equity Interests
69
of the Borrowers and their Subsidiaries provided that with respect to
Investments made under this clause (vii), (1) immediately before and
after giving effect thereto, no Default shall have occurred and be
continuing or would result therefrom; and (2) immediately after giving
effect to the acquisition of a company or business pursuant to this
clause (vii), the Parent and its Subsidiaries shall be in pro forma
compliance with the covenants contained in Section 5.04, calculated
based on the financial statements most recently delivered to the
Lender Parties pursuant to Section 5.03 and as though such acquisition
had occurred at the beginning of the appropriate measurement periods
for the financial covenants, as evidenced by a certificate of the
Chief Financial Officer of the Parent delivered to the Lender Parties
demonstrating such compliance.
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests other than of a wholly owned Subsidiary now or hereafter
outstanding, return any capital to its stockholders, partners or members
(or the equivalent Persons thereof) as such, make any distribution of
assets, Equity Interests, obligations or securities to its stockholders,
partners or members (or the equivalent Persons thereof) as such or permit
any of its Subsidiaries to do any of the foregoing, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire for
value any Equity Interests in each Borrower or to issue or sell any Equity
Interests therein, except that, so long as no Default shall have occurred
and be continuing at the time of any action described in clause (i) or (ii)
below or would result therefrom:
(i) each Borrower may declare and pay dividends and distributions
payable only in stock of each Borrower,
(ii) the Borrowers may declare and pay cash dividends to the
Parent to the extent, and only to the extent, necessary to enable the
Parent to pay (a) cash interest on the Existing Debt listed on
Schedule 4.01(s), and (b) cash interest on other Debt of the Parent
permitted pursuant to Section 5.02(b) (iii)(B) and (F), and
(iii) any Subsidiary of each Borrower may (A) declare and pay
cash dividends to each Borrower, (B) declare and pay cash dividends to
any other Loan Party of which it is a Subsidiary and (C) accept
capital contributions from its Parent to the extent permitted under
Section 5.01(f)(i).
(h) Amendments of Constitutive Documents. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws or other
constitutive documents other than any such amendment that could not
reasonably be expected to have a Material Adverse Effect.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as required or permitted by generally accepted
accounting principles, or (ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
70
make any payment in violation of any subordination terms of, any Debt,
except (i) the prepayment of the Advances in accordance with the terms of
this Agreement and (ii) regularly scheduled or required repayments or
redemptions of Existing Debt, or amend, modify or change in any manner any
term or condition of any Existing Debt or Subordinated Debt if such
amendment, modification or change is reasonably likely to have an adverse
impact on (a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Parent and its Subsidiaries
taken as a whole, (b) the rights and remedies of any Agent or any Lender
Party under any Transaction Document or (c) the ability of any Loan Party
to perform its Obligations under any Transaction Document to which it is or
is to be a party, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt payable to any Borrower.
(k) Amendment, Etc., of Related Documents. Cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof, amend, modify or change in any manner any term or condition of any
Related Document or give any consent, waiver or approval thereunder, waive
any default under or any breach of any term or condition of any Related
Document, agree in any manner to any other amendment, modification or
change of any term or condition of any Related Document or take any other
action in connection with any Related Document that would impair the value
of the interest or rights of any Loan Party thereunder or that would impair
the rights or interests of any Agent or any Lender Party, or permit any of
its Subsidiaries to do any of the foregoing.
(l) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon any
of its property or assets except (i) in favor of the Secured Parties or
(ii) in connection with (A) any Existing Debt, (B) any purchase money Debt
permitted by Section 5.02(b)(iii)(B) solely to the extent that the
agreement or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt, (C) any Capitalized Lease
permitted by Section 5.02(b)(iii)(C) solely to the extent that such
Capitalized Lease prohibits a Lien on the property subject thereto, (D) any
Debt outstanding on the date any Subsidiary of any Borrower becomes such a
Subsidiary (so long as such agreement was not entered into solely in
contemplation of such Subsidiary becoming a Subsidiary of such Borrower)
and (E) any governmental license, permit or other approval.
(m) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries
(other than a wholly owned special purpose Subsidiary of a Borrower formed
specifically for the purpose) to do so.
(n) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions.
(o) Formation of Subsidiaries. Organize or invest, or permit any
Subsidiary to organize or invest, in any new Subsidiary unless it becomes a
Subsidiary Guarantor.
(p) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
71
Subsidiaries to enter into or suffer to exist, any agreement or arrangement
limiting the ability of any of its Subsidiaries to declare or pay dividends
or other distributions in respect of its Equity Interests or repay or
prepay any Debt owed to, make loans or advances to, or otherwise transfer
assets to or invest in, the Borrower or any Subsidiary of any Borrower
(whether through a covenant restricting dividends, loans, asset transfers
or investments, a financial covenant or otherwise), except (i) the Loan
Documents and (ii) any agreement or instrument evidencing Existing Debt.
(q) Amendment, Etc., of Material Contracts. Cancel or terminate any
Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any
consent, waiver or approval thereunder, waive any default under or breach
of any Material Contract, agree in any manner to any other amendment,
modification or change of any term or condition of any Material Contract or
take any other action in connection with any Material Contract that would
impair the value of the interest or rights of any Loan Party thereunder or
that would impair the interest or rights of any Agent or any Lender Party,
or permit any of its Subsidiaries to do any of the foregoing, in each case
except in the ordinary course of business in a manner that would not
reasonably be expected to have a Material Adverse Effect.
(r) Capital Expenditures. Make, or permit any of its Subsidiaries to
make, any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by the Parent and its Subsidiaries in any period
set forth in Section 6.01(q) to exceed 80% of the amount allowed pursuant
to Section 6.01(q) for such period:
SECTION 5.03. Reporting Requirements. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, each applicable Loan Party will furnish to the Agents and
the Lender Parties:
(a) Default and Prepayment Notices. (i) As soon as possible and in any
event within two days after the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of such Default and
the action that the Borrower has taken and proposes to take with respect
thereto, and (ii) as soon as possible and in any event no later than 1:00
P.M. (New York City time) at least seven Business Days before any
prepayment of Term Advances is to be made by the Borrowers pursuant to
Section 2.06 (the "Prepayment Date"), written notice of the principal
amount of such prepayment (the "Prepayment Amount") and the applicable
Prepayment Date. Each such notice (a "Prepayment Notice") shall be by telex
or telecopier or otherwise as provided in Section 9.02.
(b) Annual Financials. As soon as available and in any event within
106 days after the end of each Fiscal Year, a copy of the annual audit
report for such year for the Parent and its Subsidiaries, including therein
Consolidated and consolidating balance sheets of the Parent and its
Subsidiaries as of the end of such Fiscal Year and Consolidated and
consolidating statements of income and a Consolidated statement of cash
flows of the Parent and its Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion acceptable to the Required Lenders of KPMG Peat
72
Marwick or other independent public accountants of recognized standing
acceptable to the Required Lenders, together with (i) a certificate of the
Chief Financial Officer to the Lender Parties stating that in the course of
the regular audit of the business of the Parent and its Subsidiaries, which
audit was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has not indicated to such
Chief Financial Officer that it had obtained knowledge that a Default has
occurred and is continuing, or if, in the opinion of such accounting firm,
a Default has occurred and is continuing, a statement as to the nature
thereof, (ii) a schedule in form satisfactory to the Administrative Agent
of the computations used by the Chief Financial Officer in determining, as
of the end of such Fiscal Year, compliance with the covenants contained in
Section 5.04, provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Parent shall also provide, if
necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP
and (iii) a certificate of the Chief Financial Officer of the Parent
stating that no Default has occurred and is continuing or, if a default has
occurred and is continuing, a statement as to the nature thereof and the
action that the Parent has taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event within
50 days after the end of each of the first three quarters of each Fiscal
Year, Consolidated and consolidating balance sheets of the Parent and its
Subsidiaries as of the end of such quarter and Consolidated and
consolidating statements of income and a Consolidated statement of cash
flows of the Parent and its Subsidiaries for the period commencing at the
end of the previous fiscal quarter and ending with the end of such fiscal
quarter (except for the Consolidated statement of cash flows, which shall
be on a year to date basis) and Consolidated and consolidating statements
of income and a Consolidated statement of cash flows of the Parent and its
Subsidiaries for the period commencing at the end of the previous Fiscal
Year and ending with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding date or
period of the preceding Fiscal Year, all in reasonable detail and duly
certified (subject to normal year-end audit adjustments) by the Chief
Financial Officer of the Parent as having been prepared in accordance with
GAAP, together with (i) a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and such action that the
Parent has taken and proposes to take with respect thereto and (ii) a
schedule in form satisfactory to the Administrative Agent of the
computations used by the Parent in determining compliance with the
covenants contained in Section 5.04, provided that in the event of any
change in GAAP used in the preparation of such financial statements, the
Parent shall also provide, if necessary for the determination of compliance
with Section 5.04, a statement of reconciliation conforming such financial
statements to GAAP.
(d) Annual Forecasts. As soon as available and in any event no later
than January 31 of each Fiscal Year, forecasts prepared by management of
the Parent, in form satisfactory to the Administrative Agent, of balance
sheets, income statements and cash flow statements on a quarterly basis for
such Fiscal Year and on an annual basis for each Fiscal Year thereafter
until the Tranche B Termination Date.
(e) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court
73
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f).
(f) Securities Reports. Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and reports that any
Loan Party or any of its Subsidiaries sends to its stockholders, and copies
of all regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files with the
Securities and Exchange Commission or any governmental authority that may
be substituted therefor, or with any national securities exchange.
(g) Creditor Reports. Promptly after the furnishing thereof, copies of
any statement or report furnished to any holder of Debt securities of any
Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lender Parties pursuant to any other clause of this
Section 5.03.
(h) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of
its Subsidiaries under or pursuant to any Related Document or Material
Contract or instrument, indenture, loan or credit or similar agreement
regarding or related to any breach or default by any party thereto or any
other event that could materially impair the value of the interests or the
rights of any Loan Party or otherwise have a Material Adverse Effect and
copies of any amendment, modification or waiver of any provision of any
Related Document or Material Contract or instrument, indenture, loan or
credit or similar agreement and, from time to time upon request by the
Administrative Agent, such information and reports regarding the Related
Documents, the Material Contracts and such instruments, indentures and loan
and credit and similar agreements as the Administrative Agent may
reasonably request.
(i) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in any
event within 10 days after any Loan Party or any ERISA Affiliate knows or
has reason to know that any ERISA Event has occurred, a statement of the
Chief Financial Officer of the Borrower describing such ERISA Event and the
action, if any, that such Loan Party or such ERISA Affiliate has taken and
proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(ii) Plan Terminations. Promptly and in any event within two Business
Days after receipt thereof by any Loan Party or any ERISA Affiliate, copies
of each notice from the PBGC stating its intention to terminate any Plan or
to have a trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within five
Business Days after receipt thereof by any Loan Party or any ERISA
74
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred, by such Loan Party
or any ERISA Affiliate in connection with any event described in clause (A)
or (B).
(j) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(k) Real Property. As soon as available and in any event within 60
days after the end of each Fiscal Year, a report supplementing Schedules
4.01(w) and 4.01(x) hereto, including an identification of all owned and
leased real property disposed of by each Borrower or any of its
Subsidiaries during such Fiscal Year, a list and description (including the
street address, county or other relevant jurisdiction, state, record owner,
book value thereof and, in the case of leases of property, lessor, lessee,
expiration date and annual rental cost thereof) of all real property
acquired or leased during such Fiscal Year and a description of such other
changes in the information included in such Schedules as may be necessary
for such Schedules to be accurate and complete.
(l) Insurance. As soon as available and in any event within 30 days
after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as
any Agent, or any Lender Party through the Administrative Agent, may
reasonably specify.
(m) Borrowing Base Certificate. As soon as available and in any event
within 10 days after the end of each month, a Borrowing Base Certificate,
as at the end of the previous month, certified by the Chief Financial
Officer of each Borrower.
(n) Year 2000 Compliance. Promptly after each Borrower's discovery or
determination thereof, notice (in reasonable detail) that any computer
application (including those of its suppliers, vendors and customers) that
is material to its or any of its Subsidiaries' business and operations will
not be Year 2000 Compliant (as defined in Section 4.01(z)), except to the
extent that such failure could not reasonably be expected to have a
Material Adverse Effect.
(o) Revenue Agent Reports. Within 10 days after receipt, copies of all
Revenue Agent Report (Internal Revenue Service Form 886), or other written
proposals of the Internal Revenue Service, that propose, determine or
otherwise set forth positive adjustments to the federal income tax
liability of the affiliated group (within the meaning of Section 1504(a)(1)
of the Internal Revenue Code) of which the Borrower is a member aggregating
$3,000,000 or more.
75
(p) Tax Certificates. Promptly, and in any event within thirty (30)
Business Days after the due date (with extensions, if properly obtained)
for filing the final federal income tax return in respect of each taxable
year, a certificate (a "Tax Certificate") signed by the President or the
Chief Financial Officer of the Parent, stating that there has been paid to
the Internal Revenue Service or other applicable taxing authority, the full
amount that the affiliated group that includes the Parent and the Borrowers
is required to pay in respect of federal income tax for such year and that
the Parent and the Borrowers have received any amounts payable to them,
that the Parent and the Borrowers have not paid amounts in respect of taxes
(federal, state, local or foreign) in excess of the amounts, if any, they
are required to pay under the Tax Sharing Agreement in respect of such
taxable year and have received amounts, if any, due to them under the Tax
Sharing Agreement for such year.
(q) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Agent, or any
Lender Party through the Administrative Agent, may from time to time
reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any other
Obligation of any Loan Party under any Loan Document shall remain unpaid, any
Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Parent will:
(a) Senior Secured Debt Service Coverage Ratio. Maintain at the end of
each fiscal quarter of the Borrowers a Senior Secured Debt Service Coverage
Ratio of not less than the amount set forth below for such period:
1999 2000 2001 2002 2003 2004 2005
1st Quarter N/A 2.50:1 2.75:1 2.75:1 3.00:1 3.00:1 3.00:1
2nd Quarter N/A 2.50:1 2.75:1 2.75:1 3.00:1 3.00:1 3.00:1
3rd Quarter 2.50:1 2.50:1 2.75:1 2.75:1 3.00:1 3.00:1 3.00:1
4th Quarter 2.50:1 2.50:1 2.75:1 2.75:1 3.00:1 3.00:1 3.00:1
(b) Minimum EBITDA: Maintain quarterly EBITDA of the Parent and its
Subsidiaries as at the end of each fiscal quarter of the Parent of not less
than the amount set forth below:
1999 2000 2001 2002 2003 2004 2005
1st Quarter N/A $36,036,000 $68,412,000 $97,000,000 $129,977,000 $144,000,000 $147,000,000
2nd Quarter N/A $42,214,000 $77,199,000 $103,000,000 $135,000,000 $144,000,000 $147,000,000
3rd Quarter $23,204,000 $48,506,000 $85,471,000 $109,000,000 $140,000,000 $145,328,000 $150,000,000
4th Quarter $29,136,000 $54,249,000 $94,183,000 $117,641,000 $144,000,000 $147,000,000 $153,738,000
(c) Maximum Senior Secured Leverage. Maintain at the end of each
fiscal quarter of the Parent a Senior Secured Debt Ratio of not greater
than the ratio set forth below for such fiscal quarter:
76
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 1999 2.75:1
December 31, 1999 2.75:1
March 31, 2000 2.75:1
June 30, 2000 2.75:1
September 30, 2000 2:50:1
December 31, 2000 2:25:1
March 31, 2001 2:25:1
June 30, 2001 2:25:1
September 30, 2001 2:25:1
December 31, 2001 2:25:1
March 31, 2002 2:25:1
June 30, 2002 2:25:1
September 30, 2002 2:25:1
December 31, 2002 2:25:1
March 31, 2003 2:25:1
June 30, 2003 2:25:1
September 30, 2003 2:25:1
December 31, 2003 2:25:1
March 31, 2004 2:25:1
June 30, 2004 2:25:1
September 30, 2004 2:25:1
December 31, 2004 2:25:1
March 31, 2005 2:25:1
June 30, 2005 2:25:1
September 30, 2005 2:25:1
December 31, 2005 2:25:1
(d) Maximum Total Leverage. Maintain at the end of each fiscal quarter
of the Parent a Parent Total Leverage Ratio of not greater than the ratio
set forth below for such fiscal quarter:
Fiscal Quarter Ending In Ratio
------------------------ -----
September 30, 1999 8.75:1
December 31, 1999 7.75:1
March 31, 2000 7.75:1
June 30, 2000 7.25:1
September 30, 2000 7.00:1
December 31, 2000 7.00:1
March 31, 2001 7.00:1
June 30, 2001 6.50:1
September 30, 2001 6.25:1
December 31, 2001 6.00:1
March 31, 2002 5.50:1
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Fiscal Quarter Ending In Ratio
------------------------ -----
June 30, 2002 5.50:1
September 30, 2002 5.50:1
December 31, 2002 5.50:1
March 31, 2003 5.00:1
June 30, 2003 5.00:1
September 30, 2003 5.00:1
December 31, 2003 5.00:1
March 31, 2004 5.00:1
June 30, 2004 5.00:1
September 30, 2004 5.00:1
December 31, 2004 5.00:1
March 31, 2005 5.00:1
June 30, 2005 5.00:1
September 30, 2005 5.00:1
December 31, 2005 5.00:1
(e) Minimum Interest Coverage. Maintain at the end of each fiscal
quarter of the Parent a ratio of (i) EBITDA of the Parent for the most
recently ended six month period to (ii) Interest Expense of the Parent for
the most recently ended six month period of not less than 3.75:1.
(f) Minimum Fixed Charge Coverage. Maintain at the end of each fiscal
quarter of the Parent a ratio of (i) EBITDA of the Parent for the most
recently ended six month period to (ii) Fixed Charges for the most recently
ended six month period of not less than the ratio set forth below for such
fiscal quarter:
Fiscal Quarter Ending In Ratio
------------------------ -----
June 30, 2002 0.50:1
September 30, 2002 0.50:1
December 31, 2002 0.50:1
March 31, 2003 0.75:1
June 30, 2003 0.75:1
September 30, 2003 0.75:1
December 31, 2003 0.75:1
March 31, 2004 1.10:1
June 30, 2004 1.10:1
September 30, 2004 1.10:1
December 31, 2004 1.10:1
March 31, 2005 1.10:1
June 30, 2005 1.10:1
September 30, 2005 1.10:1
December 31, 2005 1.10:1
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) (i) any Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) any Borrower shall fail
to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause
(ii) within five days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made or confirmed; or
(c) any Loan Party shall fail to perform or observe any term, covenant
or agreement contained in Section 2.14, 5.01(e), (f), (i), (j), (o) or (n),
5.02, 5.03(a)(i), or 5.04; or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by any Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Debt of such Loan Party or such Subsidiary (as the case may be) that
is outstanding in a principal amount (or, in the case of any Hedge
Agreement, an Agreement Value) of at least $10,000,000 either individually
or in the aggregate (but excluding Debt outstanding hereunder), when the
same becomes due and payable (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 any other event shall
occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared
to be due and payable or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not pay
its debts as such debts become due, or shall admit in writing its inability
to pay its debts generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted by or against
any Loan Party or any of its Subsidiaries seeking to adjudicate it a
79
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or for
any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is being
diligently contested by it in good faith, either such proceeding shall
remain undismissed or unstayed for a period of 60 days or any of the
actions sought in such proceeding (including, without limitation, the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or any Loan Party or any of its Subsidiaries shall
take any corporate action to authorize any of the actions set forth above
in this subsection (f); or
(g) any judgments or orders, either individually or in the aggregate,
for the payment of money in excess of $10,000,000 (determined net of any
applicable insurance proceeds) shall be rendered against any Loan Party or
any of its Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 25 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any provision of any Loan Document after delivery thereof pursuant
to Section 3.01 or 5.01(j) shall for any reason cease to be valid and
binding on or enforceable against any Loan Party party to it, or any such
Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Collateral purported to
be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and the
sum (determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other Plans
with respect to which an ERISA Event shall have occurred and then exist (or
the liability of the Loan Parties and the ERISA Affiliates related to such
ERISA Event) exceeds $500,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
80
as of the date of such notification), exceeds $500,000 or requires payments
exceeding $100,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $500,000; or
(o) any Borrowing Base Deficiency shall occur; or
(p) ICG shall fail to maintain the following financial covenants:
(i) Minimum Revenue. At the end of each fiscal quarter set forth
below, maintain quarterly Revenue of not less than the amount set
forth below for such fiscal quarter:
Fiscal Quarter Ending Revenue
--------------------- -------
September 30, 1999 $110,000,000
December 31, 1999 $135,000,000
March 31, 2000 $135,000,000
June 30, 2000 $180,000,000
September 30, 2000 $225,000,000
December 31, 2000 $265,000,000
March 31, 2001 $290,000,000
June 30, 2001 $330,000,000
September 30, 2001 $365,000,000
December 31, 2001 $420,000,000
March 31, 2002 $468,000,000
June 30, 2002 $502,500,000
September 30, 2002 $542,000,000
December 31, 2002 $587,500,000
March 31, 2003 $615,000,000
June 30, 2003 $675,000,000
September 30, 2003 $710,000,000
December 31, 2003 $750,000,000
March 31, 2004 $825,000,000
June 30, 2004 $835,000,000
September 30, 2004 $840,000,000
December 31, 2004 $850,000,000
March 31, 2005 $850,000,000
June 30, 2005 $850,000,000
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Fiscal Quarter Ending Revenue
--------------------- -------
September 30, 2005 $865,000,000
December 31, 2005 $885,500,000
(ii) Minimum EBITDA. At the end of each fiscal quarter set forth
below, maintain EBITDA of ICG for such fiscal quarter of not less than
the amount set forth below (or, in the case of (A) the fiscal quarters
ending on or before March 31, 2000, EBITDA of ICG for the period from
April 1, 1999 through the end of such fiscal quarter and (B) the
fiscal quarter ended June 30, 2000, EBITDA of ICG for the most
recently ended twelve-month period):
Fiscal Quarter Ending EBITDA
--------------------- ------
September 30, 1999 $22,615,000
December 31, 1999 $52,527,000
March 31, 2000 $45,435,000
June 30, 2000 $56,958,000
September 30, 2000 $53,743,000
December 31, 2000 $71,500,000
March 31, 2001 $85,679,000
June 30, 2001 $105,843,000
September 30, 2001 $121,372,000
December 31, 2001 $149,757,000
March 31, 2002 $190,000,000
June 30, 2002 $204,000,000
September 30, 2002 $220,000,000
December 31, 2002 $238,553,000
March 31, 2003 $275,000,000
June 30, 2003 $301,675,000
September 30, 2003 $316,000,000
December 31, 2003 $334,085,000
March 31, 2004 $378,992,000
June 30, 2004 $385,491,000
September 30, 2004 $390,036,000
December 31, 2004 $395,000,000
March 31, 2005 $395,000,000
June 30, 2005 $395,000,000
September 30, 2005 $400,000,000
December 31, 2005 $406,004,000
(iii) Maximum Total Leverage. At the end of each fiscal quarter
set forth below, maintain an ICG Total Leverage Ratio of not greater
than the ratio set forth below for such fiscal quarter:
82
Fiscal Quarter Ending Ratio
--------------------- -----
June 30, 2001 8.50:1
September 30, 2001 7.50:1
December 31, 2001 6.50:1
March 31, 2002 5.00:1
June 30, 2002 5.00:1
September 30, 2002 5.00:1
December 31, 2002 5.00:1
March 31, 2003 and thereafter 4.00:1
(iv) Maximum Total Debt/Gross PP & E. At the end of each fiscal
quarter set forth below, maintain a ratio of (i) Total Debt of ICG and
its Subsidiaries on such date to (ii) the gross book value of the
Gross PP & E on such date of not greater than the ratio set forth
below for such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 1999 1.50:1
December 31, 1999 1.45:1
March 31, 2000 1.40:1
June 30, 2000 1.35:1
September 30, 2000 1.30:1
December 31, 2000 1:25:1
March 31, 2001 1:25:1
June 30, 2001 1.20:1
September 30, 2001 1.15:1
December 31, 2001 1.10:1
March 31, 2002 and thereafter 1.00:1
(v) Minimum Interest Coverage. Maintain at the end of each fiscal
quarter set forth below a ratio of (i) EBITDA of ICG for the most
recently ended six month period to (ii) Interest Expense of ICG for
the most recently ended six month period of not less than the ratio
set forth below for such fiscal quarter (or, (A) in the case of the
fiscal quarter ending December 31, 1999, a ratio of (i) EBITDA of ICG
for the most recently ended nine month period to (ii) Interest Expense
of ICG for the most recently ended nine month period and (B) in the
case of the fiscal quarters ending March 31, 2000 and June 30, 2000, a
ratio of (i) EBITDA of ICG for the most recently ended twelve month
period to (ii) Interest Expense of ICG for the most recently ended
twelve month period):
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 1999 1.75:1
December 31, 1999 1.75:1
March 31, 2000 1.75:1
June 30, 2000 1.75:1
83
Fiscal Quarter Ending Ratio
--------------------- -----
September 30, 2000 2.25:1
December 31, 2000 2:25:1
March 31, 2001 2:25:1
June 30, 2001 2.25:1
September 30, 2001 2.25:1
December 31, 2001 2.25:1
March 31, 2002 and thereafter 2.50:1; or
(q) ICG shall make, or permit any of its Subsidiaries to make,
any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by ICG and its Subsidiaries in any period
set forth below to exceed the amount set forth below for such period:
Fiscal Quarter Ending Amount
--------------------- ------
September 30, 1999 $173,000,000
December 31, 1999 229,000,000
March 31, 2000 207,000,000
June 30, 2000 202,000,000
September 30, 2000 195,000,000
December 31, 2000 190,000,000
March 31, 2001 237,000,000
June 30, 2001 229,000,000
September 30, 2001 222,000,000
December 31, 2001 213,000,000
March 31, 2002 228,280,000
June 30, 2002 228,280,000
September 30, 2002 210,720,000
December 31, 2002 210,720,000
March 31, 2003 216,060,000
June 30, 2003 216,060,000
September 30, 2003 199,440,000
December 31, 2003 199,440,000
March 31, 2004 199,680,000
June 30, 2004 199,680,000
September 30, 2004 184,320,000
December 31, 2004 184,320,000
March 31, 2005 205,670,000
June 30, 2005 205,670,000
September 30, 2005 189,850,000
December 31, 2005 189,850,000
provided, however, that if, at the end of any such period (a "Base Quarter") set
forth above, the amount specified above for such Base Quarter exceeds the amount
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of Capital Expenditures made by ICG and its Subsidiaries during such Base
Quarter (the amount of such excess being the "Excess Amount"), ICG and its
Subsidiaries shall be entitled to make additional Capital Expenditures in either
of the two succeeding periods set forth above in an amount in the aggregate over
such succeeding periods equal to the Excess Amount;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrowers,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by the Issuing Bank
or a Working Capital Lender pursuant to Section 2.03(c)) and of the Issuing Bank
to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrowers, declare the Notes, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Notes, all
such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrowers, (B) by notice to each
party required under the terms of any agreement in support of which a Standby
Letter of Credit is issued, request that all Obligations under such agreement be
declared to be due and payable and (C) by notice to the Issuing Bank, direct the
Issuing Bank to deliver a Default Termination Notice to the beneficiary of each
Standby Letter of Credit issued by it, and the Issuing Bank shall deliver such
Default Termination Notices; provided, however, that in the event of an actual
or deemed entry of an order for relief with respect to the Borrowers under the
Federal Bankruptcy Code, (x) the Commitments of each Lender Party and the
obligation of each Lender Party to make Advances (other than Letter of Credit
Advances by the Issuing Bank or a Working Capital Lender pursuant to Section
2.03(c)) and of the Issuing Bank to issue Letters of Credit shall automatically
be terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrowers.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If
any Event of Default shall have occurred and be continuing, the Administrative
Agent may, or shall at the request of the Required Lenders, irrespective of
whether it is taking any of the actions described in Section 6.01 or otherwise,
make demand upon the Borrowers to, and forthwith upon such demand the Borrowers
will, pay to the Collateral Agent on behalf of the Lender Parties in same day
funds at the Collateral Agent's office designated in such demand, for deposit in
the L/C Cash Collateral Account, an amount equal to the aggregate Available
Amount of all Letters of Credit then outstanding. If at any time the
Administrative Agent or the Collateral Agent determines that any funds held in
the L/C Cash Collateral Account are subject to any right or claim of any Person
other than the Agents and the Lender Parties or that the total amount of such
funds is less than the aggregate Available Amount of all Letters of Credit, the
Borrowers will, forthwith upon demand by the Administrative Agent or the
Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent or the Collateral Agent, as the case may be, determines to
be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit for which funds are on deposit in the L/C Cash Collateral Account, such
funds shall be applied to reimburse the Issuing Bank or Working Capital Lenders,
as applicable, to the extent permitted by applicable law.
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ARTICLE VII
PARENT GUARANTY
SECTION 7.01. Guaranty. The Parent hereby unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of each other Loan Party now or
hereafter existing under the Loan Documents, whether for principal, interest,
fees, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including reasonable
counsel fees and expenses) incurred by the Administrative Agent or the Lender
Parties in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, the Parent0s liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by each
such Loan Party to the Agent or any Lender Party under the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving any Loan Party.
SECTION 7.02. Guaranty Absolute. The Parent guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Agents or
the Lenders with respect thereto. The Obligations of the Parent under this
Guaranty are independent of the Guaranteed Obligations or any other Obligations
of any Loan Party under the Loan Documents, and a separate action or actions may
be brought and prosecuted against the Parent to enforce this Guaranty,
irrespective of whether any action is brought against any other Loan Party or
whether any other Loan Party is joined in any such action or actions. The
liability of the Parent under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and the Parent hereby irrevocably waives any
defenses it may now or hereinafter have in any way relating to, any or all of
the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Borrower or
otherwise;
(c) any taking, exchange, release or non-perfection of any collateral,
or any taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan Documents
or any other assets of any Loan Party or any of their Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of their Subsidiaries; or
86
(f) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by
the Administrative Agent or any Lender Party that might otherwise
constitute a defense available to, or a discharge of, the Borrower, any
Subsidiary Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of any of the Guaranteed Obligations is
rescinded or must otherwise be returned by the Administrative Agent or any
Lender Party upon the insolvency, bankruptcy or reorganization of any Loan Party
or any of their Subsidiaries or otherwise, all as though such payment had not
been made.
SECTION 7.03. Waiver. The Parent hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that the Administrative Agent
or any Lender Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any collateral. The Parent acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waiver set forth in this Section
7.03 is knowingly made in contemplation of such benefits
SECTION 7.04. Subrogation. The Parent will not exercise any rights that it
may now or hereafter acquire against the Borrower, any Subsidiary Guarantor or
any other guarantor that arise from the existence, payment, performance or
enforcement of the Parent0s Obligations under this Agreement or any other Loan
Document, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Administrative Agent or any Lender
Party against the Borrower, any Subsidiary Guarantor or any other guarantor or
any collateral, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from the Borrower, any Subsidiary Guarantor or any other
guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Obligations and all other amounts payable under this
Guaranty shall have been paid in full in cash and the Commitments shall have
expired or terminated. If any amount shall be paid to the Parent in violation of
the preceding sentence at any time prior to the later of (i) the payment in full
in cash of the Guaranteed Obligations and all other amounts payable under this
Guaranty, and (ii) the later of the Tranche A Termination Date, the Tranche B
Termination Date and the Working Capital Termination Date, such amount shall be
held in trust for the benefit of the Administrative Agent and the Lender Parties
and shall forthwith be paid to the Administrative Agent to be credited and
applied to the Guaranteed Obligations and all other amounts payable under this
Guaranty, whether matured or unmatured, in accordance with the terms of the Loan
Documents, or to be held as collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (i) the Parent shall
make payment to the Administrative Agent or any Lender Party of all or any part
of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall be paid in full in cash and
(iii) each of the Tranche A Termination Date, the Tranche B Termination Date and
the Working Capital Termination Date shall have occurred, the Administrative
Agent and the Lender Parties will, at the Parent0s request and expense, execute
and deliver to the Parent appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
the Parent of an interest in the Guaranteed Obligations resulting from such
payment by the Parent.
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ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender, Issuing Bank (if applicable) and on behalf of itself and
its Affiliates as potential Hedge Banks) hereby appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
such Agent by the terms hereof and thereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), no Agent shall 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 the Required Lenders, and such instructions shall be
binding upon all Lender Parties and all holders of Notes; provided, however,
that no Agent shall be required to take any action that exposes such Agent to
personal liability or that is contrary to this Agreement or applicable law. Each
Agent agrees to give to each Lender Party prompt notice of each notice given to
it by any Borrower pursuant to the terms of this Agreement.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), 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 Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (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 any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Agents and Affiliates. With respect to its Commitments, the
Advances made by it and the Notes issued to it, each Agent shall have the same
rights and powers under the Loan Documents as any other Lender Party and may
88
exercise the same as though it were not an Agent; and the term "Lender Party" or
"Lender Parties" shall, unless otherwise expressly indicated, include each Agent
in its individual capacity. Each Agent and its respective affiliates may accept
deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiaries and any Person that may do
business with or own securities of any Loan Party or any such Subsidiary, all as
if such Agent was not an Agent and without any duty to account therefor to the
Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party acknowledges
that it has, independently and without reliance upon any Agent or any other
Lender Party and based on the financial statements referred to in Section 4.01
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 Party
also acknowledges that it will, independently and without reliance upon any
Agent or any other Lender Party 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.
SECTION 8.05. Indemnification. (a) Each Lender Party severally agrees to
indemnify each Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender Party's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever that may be imposed on, incurred by, or asserted against such
Agent in any way relating to or arising out of the Loan Documents or any action
taken or omitted by such Agent under the Loan Documents; provided, however, that
no Lender Party shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's gross negligence or
willful misconduct as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse each Agent promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrowers under Section 9.04, to the extent that such Agent is
not promptly reimbursed for such costs and expenses by the Borrowers.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank (to
the extent not promptly reimbursed by the Borrower) from and against such Lender
Party's ratable share (determined as provided below) of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Issuing Bank in any way relating to or
arising out of the Loan Documents or any action taken or omitted by the Issuing
Bank under the Loan Documents; provided, however, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Issuing Bank's gross negligence or willful misconduct as found in a
final, non-appealable judgment by a court of competent jurisdiction. Without
limitation of the foregoing, each Lender Party agrees to reimburse the Issuing
Bank promptly upon demand for its ratable share of any costs and expenses
(including, without limitation, fees and expenses of counsel) payable by the
Borrowers under Section 9.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrowers.
(c) For purposes of this Section 8.05, the Lender Parties' respective
ratable shares of any amount shall be determined, at any time, according to the
89
sum of (i) the aggregate principal amount of the Advances outstanding at such
time and owing to the respective Lender Parties, (ii) their respective Pro Rata
Shares of the aggregate Available Amount of all Letters of Credit outstanding at
such time, (iii) the aggregate unused portions of their respective Term
Commitments at such time and (iv) their respective Unused Working Capital
Commitments at such time; provided that the aggregate principal amount of Letter
of Credit Advances owing to the Issuing Bank shall be considered to be owed to
the Working Capital Lenders ratably in accordance with their respective Working
Capital Commitments. The failure of any Lender Party to reimburse any Agent or
the Issuing Bank, as the case may be, promptly upon demand for its ratable share
of any amount required to be paid by the Lender Parties to such Agent or the
Issuing Bank, as the case may be, as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent or the Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender
Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent or the Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign at any time by giving
written notice thereof to the Lender Parties and the Borrowers and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent, subject, so long as no Default has occurred and continuing, to
the consent of the Borrowers, such consent not to be unreasonably withheld. If
no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lender Parties, appoint a
successor Agent, subject, so long as no Default has occurred and continuing, to
the consent of the Borrowers, such consent not to be unreasonably withheld,
which shall be a commercial bank organized under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
$250,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent and, in the case of a successor Collateral Agent, upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to any mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Loan Documents. If within 45 days
after written notice is given of the retiring Agent's resignation or removal
under this Section 8.06 no successor Agent shall have been appointed and shall
have accepted such appointment, then on such 45th day (i) the retiring Agent's
resignation or removal shall become effective, (ii) the retiring Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Agent under the Loan Documents until such time, if any, as the Required
Lenders appoint a successor Agent as provided above. After any retiring Agent's
resignation or removal hereunder as Agent shall have become effective, the
provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or any other Loan Document, nor consent to any
departure by any Loan Party therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Collateral
Documents, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all of the Lenders (other than
any Lender Party that is, at such time, a Defaulting Lender), do any of the
following at any time: (i) waive any of the conditions specified in Section 3.01
or, in the case of the Initial Extension of Credit, Section 3.02, (ii) change
the number of Lenders or the percentage of (x) the Commitments, (y) the
aggregate unpaid principal amount of the Advances or (z) the aggregate Available
Amount of outstanding Letters of Credit that, in each case, shall be required
for the Lenders or any of them to take any action hereunder, (iii) reduce or
limit the obligations of any Guarantor under Section 1 of the Guaranty issued by
it or release such Guarantor or otherwise limit such Guarantor's liability with
respect to the Obligations owing to the Agents and the Lender Parties (other
than, in the case of any Subsidiary Guarantor, to the extent permitted under the
Subsidiary Guaranty), (iv) release any material portion of the Collateral in any
transaction or series of related transactions or permit the creation,
incurrence, assumption or existence of any Lien on any material portion of the
Collateral in any transaction or series of related transactions to secure any
Obligations other than Obligations owing to the Secured Parties under the Loan
Documents, (v) amend Section 2.13 or this Section 9.01, (vi) increase the
Commitments of the Lenders, (vii) reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (viii) postpone any date
scheduled for any payment of principal of, or interest on, the Notes pursuant to
Section 2.04 or 2.07 or any date fixed for payment of fees or other amounts
payable hereunder, or (ix) limit the liability of any Loan Party under any of
the Loan Documents and (b) no amendment, waiver or consent shall, unless in
writing and signed by the Required Lenders and each Lender (other than any
Lender that is, at such time, a Defaulting Lender) that has a Commitment under
the Term Facilities or Working Capital Facility if such Lender is directly
affected by such amendment, waiver or consent, (i) increase the Commitments of
such Lender, (ii) reduce the principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such Lender, (iii)
postpone any date fixed for any payment of principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender, (iv) change the order of application of any prepayment set forth in
Section 2.06 in any manner that materially affects such Lender; provided further
that no amendment, waiver or consent shall, unless in writing and signed by the
Issuing Bank, as the case may be, in addition to the Lenders required above to
take such action, affect the rights or obligations of the Issuing Bank under
this Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by an Agent in addition to the Lenders required
above to take such action, affect the rights or duties of such Agent under this
Agreement or the other Loan Documents.
SECTION 9.02. Notices, Etc. All notices and other communications provided
for hereunder shall be in writing (including telecopy communication) and mailed
(by certified mail), telecopied or delivered by hand; if to ICG Equipment, at
its address at 161 Inverness Drive West, Englewood, CO 80112, facsimile: (303)
414-8883, Attention: Reggie Vegliante, with a copy to H. Don Teaque, General
Counsel; if to ICG NetAhead, at its address at 161 Inverness Drive West,
Englewood, CO 80112, facsimile: (303) 414-8883, Attention: Reggie Vegliante,
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with a copy to H. Don Teague, General Counsel; if to any Initial Lender Party,
at its Domestic Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to the
Administrative Agent or the Collateral Agent, at its address at 1 Liberty Plaza,
New York, New York 10006 Attention: Kevin Cornwell; and if to the Lead Arranger
at its address at 1585 Broadway, New York, New York 10036, Attention: Lucy
Galbraith; or, as to any party, at such other address as shall be designated by
such party in a written notice to the other parties. All such notices and other
communications shall, when mailed (by certified mail), telecopied or delivered
shall be effective when received by the party being notified. Delivery by
telecopier of an executed counterpart of any amendment or waiver of any
provision of this Agreement or the Notes or of any Exhibit hereto to be executed
and delivered hereunder shall be effective as delivery of an original executed
counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender
Party or any Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) Subject to the provisions of the
Commitment Letter, the Borrowers agree jointly and severally to pay on demand
(i) all costs and expenses of the Administrative Agent and the Collateral Agent
in connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without limitation,
(A) all due diligence, collateral review, syndication, transportation, computer,
duplication, appraisal, audit, insurance, consultant, search, filing and
recording fees and expenses and (B) the reasonable fees and expenses of counsel
for such Agents with respect thereto, with respect to advising such Agents as to
their rights and responsibilities, or the perfection, protection or preservation
of rights or interests, under the Loan Documents, with respect to negotiations
with any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of such Agents and each Lender Party in
connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, or any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally (including, without limitation, the
reasonable fees and expenses of counsel for the Administrative Agent and the
Collateral Agent and each Lender Party with respect thereto).
(b) The Borrowers agree to indemnify, defend and save and hold harmless the
Administrative Agent and the Collateral Agent, each Lender Party and each of
their Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "Indemnified Party") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities, the actual
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or proposed use of the proceeds of the Advances or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated thereby, or (ii)
the actual or alleged presence of Hazardous Materials on any property of any
Loan Party or any of its Subsidiaries or any Environmental Action relating in
any way to any Loan Party or any of its Subsidiaries, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party, whether or not any
Indemnified Party is otherwise a party thereto and whether or not the
Transaction is consummated. Each Borrower also agrees not to assert any claim
against any Agent, any Lender Party or any of their Affiliates, or any of their
respective officers, directors, employees, agents and advisors, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Facilities, the actual or proposed use of the
proceeds of the Advances or the Letters of Credit, the Transaction Documents or
any of the transactions contemplated by the Transaction Documents.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate
Advance is made by any Borrower to or for the account of a Lender Party other
than on the last day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrowers pursuant to Section 9.07(a), or if the Borrowers fail to
make any payment or prepayment of an Advance for which a notice of prepayment
has been given or that is otherwise required to be made, whether pursuant to
Section 2.04, 2.06 or 6.01 or otherwise, the Borrowers shall, upon demand by
such Lender Party (with a copy of such demand to the Administrative Agent),
jointly and severally pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result of
such payment or Conversion or such failure to pay or prepay, as the case may be,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender Party to fund or maintain such
Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including, without limitation,
fees and expenses of counsel and indemnities, such amount may be paid on behalf
of such Loan Party by the Administrative Agent or any Lender Party, in its sole
discretion.
(e) Without prejudice to the survival of any other agreement of any Loan
Party hereunder or under any other Loan Document, the agreements and obligations
of each Borrower contained in Sections 2.10 and 2.12 and this Section 9.04 shall
survive the payment in full of principal, interest and all other amounts payable
hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
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Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise 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 Agent, such Lender Party
or such Affiliate to or for the credit or the account of each Borrower against
any and all of the Obligations of such Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify each Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 9.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower and each Agent and the Administrative
Agent shall have been notified by each Initial Lender Party that such Initial
Lender Party has executed it and thereafter shall be binding upon and inure to
the benefit of each Borrower, each Agent and each Lender Party and their
respective successors and assigns, except that the Borrowers shall not have the
right to assign their rights hereunder or any interest herein without the prior
written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may and, so
long as no Default shall have occurred and be continuing, if demanded by the
Borrowers (following a demand by such Lender pursuant to Section 2.10 or 2.12)
upon at least five Business Days' notice to such Lender and the Administrative
Agent, will assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitment or Commitments, the Advances owing to it and the
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a uniform, and not a varying, percentage of all rights and
obligations under and in respect of one or more Facilities, (ii) except in the
case of an assignment to a Person that, immediately prior to such assignment,
was a Lender, an Affiliate of any Lender or an Approved Fund of any Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, the
aggregate amount of the Commitments being assigned to such Eligible Assignee
pursuant to such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$3,000,000 (or such lesser amount as shall be approved by the Administrative
Agent and, so long as no Default shall have occurred and be continuing at the
time of effectiveness of such assignment, the Borrower) under each Facility for
which a Commitment is being assigned, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of a demand by the
Borrower pursuant to this Section 9.07(a) shall be arranged by the Borrower
after consultation with the Administrative Agent and shall be either an
assignment of all of the rights and obligations of the assigning Lender under
this Agreement or an assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such assignments that
together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as
a result of a demand by the Borrower pursuant to this Section 9.07(a) unless and
until such Lender shall have received one or more payments from either the
Borrower or one or more Eligible Assignees in an aggregate amount at least equal
to the aggregate outstanding principal amount of the Advances owing to such
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Lender, together with accrued interest thereon to the date of payment of such
principal amount and all other amounts payable to such Lender under this
Agreement, (vi) no such assignments shall be permitted without the consent of
the Administrative Agent until the Administrative Agent shall have notified the
Lender Parties that syndication of the Commitments hereunder has been completed
and (vii) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,000; provided, however,
that (A) such processing and recordation fee shall be $1,500 for any Person that
immediately prior to such assignment was a Lender; (B) there shall be no such
processing and recordation fee for any Person that immediately prior to such
assignment was an Affiliate of such assigning Lender; and (C) for each such
assignment made as a result of a demand by the Borrower pursuant to this Section
9.07(a), the Borrower shall pay to the Administrative Agent the applicable
processing and recordation fee.
(b) Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in such Assignment and Acceptance, (i) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender or Issuing Bank, as the
case may be, hereunder and (ii) the Lender or Issuing Bank assignor thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights (other than
its rights under Sections 2.10, 2.12 and 9.04 to the extent any claim thereunder
relates to an event arising prior to such assignment) and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the remaining portion of an assigning Lender's or
Issuing Bank's rights and obligations under this Agreement, such Lender or
Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each Lender
Party assignor thereunder and each assignee thereunder confirm to and agree with
each other and the other parties thereto and hereto as follows: (i) other than
as provided in such Assignment and Acceptance, such assigning Lender Party makes
no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant thereto;
(ii) such assigning Lender Party makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Loan Party or
the performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon any Agent, such assigning Lender Party or any other Lender Party
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; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
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thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Lender or Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but only for this
purpose) as the agent of the Borrower, shall maintain at its address referred to
in Section 9.02 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lender Parties and the Commitment under each Facility of, and principal
amount of the Advances owing under each Facility to, each Lender Party from time
to time (the "Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the Agents
and the Lender Parties shall treat each Person whose name is recorded in the
Register as a Lender Party hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Agent or any
Lender Party at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrowers and each other Agent. In the case of any assignment by a Lender,
within five Business Days after its receipt of such notice, the Borrowers, at
its own expense, shall execute and deliver to the Administrative Agent in
exchange for the surrendered Note or Notes a new Note to the order of such
Eligible Assignee in an amount equal to the Commitment assumed by it under each
Facility pursuant to such Assignment and Acceptance and, if any assigning Lender
has retained a Commitment hereunder under such Facility, a new Note to the order
of such assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1, A-2 or A-3 hereto, as the
case may be.
(f) The Issuing Bank may assign to Eligible Assignee all of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any
time; provided, however, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with a processing and recordation fee of
$3,000; provided, however, that such processing and recordation fee shall be
$1,500 for any Person that immediately prior to such assignment was a Lender.
(g) Each Lender Party may sell participations to one or more Persons (other
than any Loan Party or any of its Affiliates) in or to all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of its Commitments, the Advances owing to it and the Note or Notes
(if any) held by it); provided, however, that (i) such Lender Party's
obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrowers, the Agents and the other Lender
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Parties shall continue to deal solely and directly with such Lender Party in
connection with such Lender Party's rights and obligations under this Agreement
and (v) no participant under any such participation shall have any right to
approve any amendment or waiver of any provision of any Loan Document, or any
consent to any departure by any Loan Party therefrom, except to the extent that
such amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, or release
all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
Party by or on behalf of the Borrowers; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement, any
Lender Party 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.
SECTION 9.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of an original executed counterpart of
this Agreement.
SECTION 9.09. No Liability of the Issuing Bank. The Borrowers assume all
risks of the acts or omissions of any beneficiary or transferee of any Letter of
Credit with respect to its use of such Letter of Credit. Neither the Issuing
Bank nor any of its officers or directors shall be liable or responsible for:
(a) the use that may be made of any Letter of Credit or any acts or omissions of
any beneficiary or transferee in connection therewith; (b) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by the Issuing Bank against presentation of
documents that do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrowers shall have
a claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrowers, to the extent of any direct, but not consequential, damages suffered
by the Borrowers that the Borrowers prove were caused by (i) the Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
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furtherance and not in limitation of the foregoing, the Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither any Agent nor any Lender Party shall
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to such Agent's or such Lender Party's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective Eligible Assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial process, (c)
as requested or required by any state, Federal or foreign authority or examiner
regulating such Lender Party and (d) to any rating agency when required by it,
provided that, prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information relating to the
Loan Parties received by it from such Lender Party.
SECTION 9.11. Release of Collateral. Upon the sale, lease, transfer or
other disposition of any item of Collateral of any Loan Party (including,
without limitation, as a result of the sale, in accordance with the terms of the
Loan Documents, of the Loan Party that owns such Collateral) in accordance with
the terms of the Loan Documents, the Collateral Agent will, at the Borrowers'
expense, execute and deliver to such Loan Party such documents as such Loan
Party may reasonably request to evidence the release of such item of Collateral
from the assignment and security interest granted under the Collateral Documents
in accordance with the terms of the Loan Documents.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. Each of
the Loan Parties hereby agrees that service of all process in any such
proceeding in any such court may be made by registered mail or certified mail,
return receipt requested, to such Loan Party at its address provided in Section
9.02. Each of the parties hereto agrees that a final judgment in any such action
or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other Loan
Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.13. Governing Law. This Agreement and the Notes shall be governed
by, and construed in accordance with, the laws of the State of New York.
98
SECTION 9.14. Waiver of Jury Trial. Each of the Borrowers, the Agents and
the Lender Parties irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances, the
Letters of Credit or the actions of any Agent or any Lender Party in the
negotiation, administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
ICG EQUIPMENT, INC.
By /s/ H. Don Teague
---------------------
Title:
ICG NETAHEAD, INC.
By /s/ H. Don Teague
---------------------
Title:
ICG SERVICES, INC.
By /s/ H. Don Teague
---------------------
Title:
MORGAN STANLEY SENIOR FUNDING, INC.,
as Sole Book-Runner and Lead Arranger
By /s/ Lucy H. Galbraith
------------------------
Title: Principal
ROYAL BANK OF CANADA,
as Administrative Agent and Collateral
Agent
By /s/ Stephanie Babich
------------------------
Title: Senior Manager
BANK OF AMERICA, N.A.,
as Co-Documentation Agent
By /s/ Julie Schell
---------------------
Title: Vice President
BARCLAYS BANK PLC
as Co-Documentation Agent
By /s/ Daniele Iacovone
------------------------
Title: Associate Director
Initial Lenders
MORGAN STANLEY SENIOR FUNDING, INC.
By /s/ Lucy H. Galbraith
------------------------
Title: Principal
BANK OF AMERICA, N.A.
By /s/ Julie Schell
------------------------
Title: Vice President
PARIBAS, LOS ANGELES AGENCY
By /s/ Darlynn Ernst Kitcher
--------------------------
Title: Vice President
By /s/ Thomas G. Brandt
--------------------------
Title: Director
FINOVA CAPITAL CORPORATION
By /s/ Andrew J. Pluta
--------------------------
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Mark L. Cook
------------------------------
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Thomas P. Waters
------------------------------
Title: Senior Vice President
IBM CREDIT
By /s/ Philip N. Morse
---------------------------------------
Title: Director, Commercial Financing
Americas
ROYAL BANK OF CANADA
By /s/ Stephanie Babich
------------------------
Title: Senior Manager
STEIN ROE FLOATING RATE LIMITED LIABILITY
COMPANY
By /s/ Brian W. Good
--------------------------
Title: Vice President
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc., as its
investment manager
By /s/ Michel Prince, CFA
---------------------------
Title: Vice President