Exhibit 10.1


 




 





CREDIT AGREEMENT


 


dated as of

February 1, 2005,


 


among


 


ALASKA COMMUNICATIONS SYSTEMS
HOLDINGS, INC.,


 


as Borrower


 


and


 


ALASKA COMMUNICATIONS SYSTEMS GROUP,
INC.,


 


as Parent


 


and


 


The Lenders Party Hereto,


 


and


 


CANADIAN IMPERIAL BANK OF COMMERCE, 

acting through its New York Agency,

as Administrative Agent


 




 





CIBC WORLD MARKETS CORP.,


 


J.P. MORGAN SECURITIES INC.

and

BANC OF AMERICA SECURITIES LLC,

as Co-Lead Arrangers and Joint Book Managers


 


JPMORGAN CHASE BANK, N.A.,

as Syndication Agent


 


BANK OF AMERICA, N.A.,

as Documentation Agent


 




 
























 


TABLE OF CONTENTS


 


 


	
  ARTICLE I DEFINITIONS

  	
   

  
	
  Section 1.01 Defined Terms

  	
   

  
	
  Section 1.02 Classification of Loans and
  Borrowings

  	
   

  
	
  Section 1.03 Terms Generally

  	
   

  
	
  Section 1.04 Accounting Terms; GAAP

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  II THE LOANS

  	
   

  
	
  Section 2.01 Commitments and Loans

  	
   

  
	
  Section 2.02 Loans and Borrowings

  	
   

  
	
  Section 2.03 Requests for Borrowings

  	
   

  
	
  Section 2.04 Swingline Loans

  	
   

  
	
  Section 2.05 Letters of Credit

  	
   

  
	
  Section 2.06 Funding of Borrowings

  	
   

  
	
  Section 2.07 Interest Elections

  	
   

  
	
  Section 2.08 Termination and Reduction of
  Revolving Commitments

  	
   

  
	
  Section 2.09 Evidence of Debt

  	
   

  
	
  Section 2.10 Repayment of Loans

  	
   

  
	
  Section 2.11 Prepayment of Loans

  	
   

  
	
  Section 2.12 Fees

  	
   

  
	
  Section 2.13 Interest

  	
   

  
	
  Section 2.14 Alternate Rate of Interest

  	
   

  
	
  Section 2.15 Increased Costs

  	
   

  
	
  Section 2.16 Break Funding Payments

  	
   

  
	
  Section 2.17 Taxes

  	
   

  
	
  Section 2.18 Payments Generally; Pro Rata
  Treatment; Sharing of Setoffs

  	
   

  
	
  Section 2.19 Mitigation Obligations;
  Replacement of Lenders

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  III REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  Section 3.01 Organization; Powers

  	
   

  
	
  Section 3.02 Authorization; Enforceability

  	
   

  
	
  Section 3.03 Governmental Approvals; No
  Conflicts

  	
   

  
	
  Section 3.04 Financial Condition; No
  Material Adverse Effect

  	
   

  
	
  Section 3.05 Properties

  	
   

  
	
  Section 3.06 Litigation and Environmental
  Matters

  	
   

  
	
  Section 3.07 Compliance with Laws and
  Agreements

  	
   

  
	
  Section 3.08 Investment and Holding Company
  Status

  	
   

  
	
  Section 3.09 Taxes

  	
   

  
	
  Section 3.10 ERISA

  	
   

  
	
  Section 3.11 Disclosure

  	
   

  
	
  Section 3.12 Subsidiaries

  	
   

  
	
  Section 3.13 Insurance

  	
   

  
	
  Section 3.14 Labor Matters

  	
   

  



 


i





















 


	
  Section 3.15 Solvency

  	
   

  
	
  Section 3.16 Security Interests

  	
   

  
	
  Section 3.17 Regulatory Matters

  	
   

  
	
  Section 3.18 Senior Indebtedness

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  IV CONDITIONS OF LENDING

  	
   

  
	
  Section 4.01 Closing Date

  	
   

  
	
  Section 4.02 Each Borrowing

  	
   

  
	
  Section 4.03 Each Incremental Loan

  	
   

  
	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE COVENANTS

  	
   

  
	
  Section 5.01 Financial Statements and Other
  Information

  	
   

  
	
  Section 5.02 Notices of Material Events

  	
   

  
	
  Section 5.03 Information Regarding
  Collateral

  	
   

  
	
  Section 5.04 Existence; Conduct of Business

  	
   

  
	
  Section 5.05 Payment of Obligations

  	
   

  
	
  Section 5.06 Maintenance of Properties

  	
   

  
	
  Section 5.07 Insurance

  	
   

  
	
  Section 5.08 Casualty and Condemnation

  	
   

  
	
  Section 5.09 Books and Records; Inspection
  and Audit Rights

  	
   

  
	
  Section 5.10 Compliance with Laws

  	
   

  
	
  Section 5.11 Use of Proceeds

  	
   

  
	
  Section 5.12 Subsidiaries

  	
   

  
	
  Section 5.13 ACS Media Holdings LLC

  	
   

  
	
  Section 5.14 Further Assurances

  	
   

  
	
  Section 5.15 Ratings

  	
   

  
	
  Section 5.16 Hedging Agreements

  	
   

  
	
  Section 5.17 Compliance with Environmental
  Laws

  	
   

  
	
  Section 5.18 Conditions Subsequent to the
  Closing Date

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VI NEGATIVE COVENANTS

  	
   

  
	
  Section 6.01 Indebtedness; Certain Equity
  Securities

  	
   

  
	
  Section 6.02 Liens

  	
   

  
	
  Section 6.03 Fundamental Changes; Lines of
  Business

  	
   

  
	
  Section 6.04 Investments, Loans, Advances,
  Guarantees and Acquisitions

  	
   

  
	
  Section 6.05 Asset Sales

  	
   

  
	
  Section 6.06 Sale and Leaseback
  Transactions

  	
   

  
	
  Section 6.07 Hedging Agreements

  	
   

  
	
  Section 6.08 Restricted Payments; Certain
  Payments of Indebtedness

  	
   

  
	
  Section 6.09 Transactions with Affiliates

  	
   

  
	
  Section 6.10 Restrictive Agreements

  	
   

  
	
  Section 6.11 Amendment of Material
  Documents

  	
   

  
	
  Section 6.12 Financial Covenants

  	
   

  
	
  Section 6.13 Fiscal Year

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  VII EVENTS OF DEFAULT

  	
   

  



 


ii





















 


	
  ARTICLE
  VIII THE ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  IX MISCELLANEOUS

  	
   

  
	
  Section 9.01 Notices

  	
   

  
	
  Section 9.02 Waivers, Amendments

  	
   

  
	
  Section 9.03 Expenses; Indemnity; Damage
  Waiver

  	
   

  
	
  Section 9.04 Successors and Assigns

  	
   

  
	
  Section 9.05 Survival

  	
   

  
	
  Section 9.06 Counterparts; Integration;
  Effectiveness

  	
   

  
	
  Section 9.07 Severability

  	
   

  
	
  Section 9.08 Right of Setoff

  	
   

  
	
  Section 9.09 Governing Law; Jurisdiction;
  Consent to Service of Process

  	
   

  
	
  Section 9.10 WAIVER OF JURY TRIAL

  	
   

  
	
  Section 9.11 Headings

  	
   

  
	
  Section 9.12 Confidentiality

  	
   

  
	
  Section 9.13 Interest Rate Limitation

  	
   

  
	
  Section 9.14 Patriot Act

  	
   

  



 


SCHEDULES:


 


	
  Schedule 1.01-A

  	
   

  	
  —

  	
   

  	
  Existing Liens

  
	
  Schedule 1.01-B

  	
   

  	
  —

  	
   

  	
  Tender Offer
  Documents for Senior Subordinated Notes

  
	
  Schedule 1.01-C

  	
   

  	
  —

  	
   

  	
  Tender and
  Consent Documents for Senior Unsecured Notes

  
	
  Schedule 1.01-D

  	
   

  	
  —

  	
   

  	
  Excluded Owned
  Real Property

  
	
  Schedule 2.01

  	
   

  	
  —

  	
   

  	
  Commitments

  
	
  Schedule 3.05(b)

  	
   

  	
  —

  	
   

  	
  Operating
  Licenses

  
	
  Schedule
  3.05(c)(i)

  	
   

  	
  —

  	
   

  	
  Owned Real
  Property

  
	
  Schedule
  3.05(c)(ii)

  	
   

  	
  —

  	
   

  	
  Mortgaged
  Property

  
	
  Schedule
  3.05(c)(iii)

  	
   

  	
  —

  	
   

  	
  Leased Real
  Property

  
	
  Schedule 3.06

  	
   

  	
   

  	
   

  	
  Disclosed
  Matters

  
	
  Schedule 3.12

  	
   

  	
  —

  	
   

  	
  Subsidiaries

  
	
  Schedule 3.13

  	
   

  	
  —

  	
   

  	
  Insurance

  
	
  Schedule 3.16(d)

  	
   

  	
  —

  	
   

  	
  Mortgage Filing
  Offices

  
	
  Schedule
  6.01(a)(viii)

  	
   

  	
  —

  	
   

  	
  Scheduled
  Indebtedness

  
	
  Schedule 6.04

  	
   

  	
  —

  	
   

  	
  Scheduled
  Investments

  
	
  Schedule 6.09

  	
   

  	
  —

  	
   

  	
  Affiliate
  Agreements

  
	
  Schedule 6.10

  	
   

  	
  —

  	
   

  	
  Scheduled
  Restrictive Agreements

  



 


iii





















 


EXHIBITS:


 


	
  Exhibit A

  	
   

  	
  —

  	
   

  	
  Form of
  Assignment and Assumption

  
	
  Exhibit B-1

  	
   

  	
  —

  	
   

  	
  Form of Opinion
  of Skadden, Arps, Slate, Meagher & Flom LLP

  
	
  Exhibit B-2

  	
   

  	
  —

  	
   

  	
  Form of Opinion
  of Leonard A. Steinberg, Esq.

  
	
  Exhibit B-3

  	
   

  	
  —

  	
   

  	
  Form of Opinion
  of Birch, Horton, Bittner & Cherot

  
	
  Exhibit C

  	
   

  	
  —

  	
   

  	
  Form of
  Perfection Certificate

  
	
  Exhibit D-1

  	
   

  	
  —

  	
   

  	
  Form of Security
  Agreement

  
	
  Exhibit D-2

  	
   

  	
  —

  	
   

  	
  Form of Pledge
  Agreement

  
	
  Exhibit E

  	
   

  	
  —

  	
   

  	
  Form of Mortgage

  
	
  Exhibit F

  	
   

  	
  —

  	
   

  	
  Form of Parent
  Guarantee Agreement

  
	
  Exhibit G

  	
   

  	
  —

  	
   

  	
  Form of
  Subsidiary Guarantee Agreement

  
	
  Exhibit H

  	
   

  	
   

  	
   

  	
  Form of Note

  
	
  Exhibit I

  	
   

  	
  —

  	
   

  	
  Form of
  Intercompany Subordination Agreement

  



 


iv





















 


CREDIT AGREEMENT,
dated as of February 1, 2005, among ALASKA COMMUNICATIONS SYSTEMS HOLDINGS,
INC., as Borrower, ALASKA COMMUNICATIONS SYSTEMS GROUP, INC., as Parent, the
several banks and other financial institutions or entities from time to time
parties to this Agreement, as lenders (the “Lenders”), and CANADIAN
IMPERIAL BANK OF COMMERCE, acting through its New York Agency, as
Administrative Agent.


 


PRELIMINARY STATEMENTS:


 


(1)           In connection with
the Transactions (as hereinafter defined), the Borrower desires to obtain from
the Lenders financings (collectively, the “Financings”) in an aggregate
principal amount of $380,000,000, comprised of (a) $335,000,000 in
aggregate cash proceeds from a seven year senior secured term loan facility,
and (b) $45,000,000 from a six year senior secured revolving facility with
a subfacility for letters of credit and a subfacility for swing line loans, the
proceeds of which will be used for (i) repayment in full of all amounts due
under the Existing Credit Agreement (as hereinafter defined), (ii) repayment of
a portion of the Senior Unsecured Notes (as hereinafter defined) and related
tender premiums, (iii) payment of costs and expenses associated with the
Transactions, (iv) funding of cash on to the balance sheet of the Borrower, and
(v) the ongoing general corporate requirements of the Borrower and its
Subsidiaries, including permitted acquisitions, dividends, capital expenditures
and investments.


 


(2)           The Lenders have
indicated their willingness to provide the Financings, but only on and subject
to the terms and conditions of this Agreement, including the granting of the
Collateral pursuant to the Security Documents and the provision of the
guarantees pursuant to the Parent Guarantee Agreement and the Subsidiary
Guarantee Agreement.


 


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


 


Section 1.01  Defined Terms.  As used in this Agreement, the following
terms have the meanings specified below:


 


“ABR”, when
used in reference to any Loan or Borrowing, refers to whether such Loan or the
Loans comprising such Borrowing are bearing interest at a rate determined by
reference to the Alternate Base Rate.


 


“Adjusted
EBITDA” means, for any period, for the Parent and the Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP), Consolidated Net Income, adjusted by adding thereto, (a) to the extent
deducted in determining Consolidated Net Income, the sum of (i) Consolidated
Interest Expense, (ii) provision for Taxes based on income,
(iii) depreciation and amortization expense,
(iv) (1) Transaction Expenses incurred in connection with the
Transactions and the Registration Statement, including any amendments thereof
or supplements thereto (including equity issuances thereunder) for its


 


1





















 


common
stock and (2) other Transaction Expenses incurred after the date hereof to
the extent not exceeding $2,500,000 in the aggregate in any fiscal year of the
Borrower, (v) unrealized losses on financial derivatives recognized in
accordance with Statement of Financial Accounting Standards No. 133, (vi) non-cash,
stock-based compensation expense, (vii) extraordinary, non-recurring or unusual
losses (including extraordinary, non-recurring or unusual losses on permitted
sales or dispositions of assets and casualty events), (viii) the cumulative
effect of a change in accounting principles and (ix) all other non-cash charges
that represent an accrual for which no cash is expected to be paid in the next
twelve months minus (b) to the extent included in determining
Consolidated Net Income, the sum of (i) unrealized gains on financial
derivatives recognized in accordance with Statement of Financial Accounting
Standards No. 133, (ii) extraordinary, non-recurring or unusual gains
(including extraordinary, non-recurring or unusual gains on permitted sales or
dispositions of assets and casualty events), (iii) gains on sales of assets
other than in the ordinary course of business and (iv) all other non-cash
income.


 


“Adjusted LIBO
Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next
1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by
(b) the Statutory Reserve Rate.


 


“Adjusted Total
Debt” means, on any date, Total Debt as of such date, minus the
amount of unrestricted cash and cash equivalents of the Parent, the Borrower
and the Subsidiaries as at said date not to exceed $20,000,000.


 


“Administrative
Agent” means Canadian Imperial Bank of Commerce in its capacity as
administrative agent for the Lenders hereunder, and any successor thereto in
such capacity.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


 


“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified.


 


“Aggregate
Credit Exposure” means, on any date, the sum of (a) the aggregate principal
amount of all Term Loans and Incremental Loans outstanding on such date plus
(b) the aggregate unused amount of the Revolving Commitment on such date plus
(c) the aggregate Revolving Exposure on such date plus (d) the aggregate
unused amount of Incremental Loan Commitments of each Series on such date.


 


“Aggregate Term
Exposure” means, on any date, the aggregate principal amount of the Term
Loans outstanding on such date.


 


“Agreement”
means this Credit Agreement.


 


“Alternate Base
Rate” means, for any day, a rate per annum equal to the greater of (a) the
Prime Rate in effect on such day, and (b) the Federal Funds Effective Rate in
effect on such day plus 1/2 of 1%.  Any
change in the Alternate Base Rate due to a change in the Prime


 


2





















 


Rate or
the Federal Funds Effective Rate shall be effective from and including the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.


 


“Applicable
Percentage” means, with respect to any Revolving Lender, the percentage of
the total Revolving Commitments represented by such Lender’s Revolving
Commitment.  If the Revolving Commitments
have terminated or expired, the Applicable Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to
any assignments.


 


“Applicable
Prepayment Percentage” means 50%, provided that (a) if the Senior
Secured Leverage Ratio as at the last day of the most recent fiscal year shall
be less than 3.00 to 1 but equal to or greater than 2.50 to 1, then such
percentage shall be reduced to 25% and (b) if the Senior Secured Leverage Ratio
as at the last day of the most recent fiscal year shall be less than 2.50 to 1,
then such percentage shall be reduced to zero percent.


 


“Applicable
Rate” means, for any day, (a) with respect to any Term Loan, (i) 1.00% per
annum, in the case of an ABR Loan, or (ii) 2.00% per annum, in the case of a
Eurodollar Loan, and (b) with respect to any Revolving Loan, the applicable
rate per annum set forth below in each case under the caption “ABR Spread” or “Eurodollar
Spread”, as applicable, based upon the Total Leverage Ratio as of the most
recent determination date, provided that for the first six months
following the Closing Date, the “Applicable Rate” for purposes of clause (b)
above shall be the applicable rate per annum set forth below in Category 2:


 


	
  Total Leverage Ratio:

  	
   

  	
  ABR

  Spread

  	
   

  	
  Eurodollar

  Spread

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 1

  Greater than or equal to 4.25 to 1

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 2

  Less than 4.25 to 1.00 but greater than or equal to 3.75 to 1

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 3

  Less than 3.75 to 1.00 but greater than or equal to 3.25 to 1

  	
   

  	
  0.75

  	
  %

  	
  1.75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Category 4

  Less than 3.25 to 1

  	
   

  	
  0.50

  	
  %

  	
  1.50

  	
  %

  



 


For purposes of
the foregoing, (a) the Total Leverage Ratio shall be determined based upon the
Parent’s consolidated financial statements most recently delivered pursuant to
Section 5.01(a) or (b), as the case may be, and (b) each change in the
Applicable Rate resulting from a change in the Total Leverage Ratio shall be
effective during the period commencing on the date that is three Business Days
after the date on which the Parent’s consolidated financial statements are
delivered pursuant to Section 5.01(a) or (b), as the case may be, and ending on
the date immediately preceding the effective date of the next such change, provided
that the Total Leverage Ratio shall be deemed to be in Category 1 (i) at any
time that an Event of Default has occurred and is continuing or (ii) at the
option of the Administrative Agent or at the request of the Required Lenders if
the Borrower fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the


 


3





















 


expiration
of the time for delivery thereof until such consolidated financial statements
are delivered.


 


Notwithstanding
the foregoing, (a) the Applicable Rate with respect to any Incremental Loan and
any Incremental Loan Commitment of any Series means the rate per annum for such
Incremental Loan and Incremental Loan Commitment agreed to by the Borrower and
the respective Incremental Loan Lender or Lenders in the related Incremental
Loan Amendment for such Series, except that in the event Incremental Loans are
effected through an increase in Term Loans (as contemplated in Section
2.01(c)), the Applicable Rate for such Incremental Loans shall be the
Applicable Rate for Term Loans in effect at the time the respective Incremental
Loan Amendment is executed, and (b) if the Applicable Rate for either Type of
any Series of Incremental Loans is greater than 0.25% above the Applicable Rate
for such Type of Term Loans (after giving effect to any prior increase of such
Applicable Rate pursuant to this paragraph), the Applicable Rate for such Type
of Term Loans will be automatically adjusted upwards on the date upon which the
Incremental Loans of such Series are made so that the Applicable Rate for such
Type of such Series of Incremental Loans is not greater than 0.25% above such
Applicable Rate for such Type of Term Loans (such adjustment upward to in any
case maintain the existing spread between the Applicable Rates for such Types
of Term Loans).


 


“Approved Fund”
means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Arrangers”
means, collectively, CIBC World Markets Corp, J.P. Morgan Securities Inc. and
Banc of America Securities LLC.


 


“Asset Sale”
means (a) any sale of any Subsidiary or business unit or division of the
Parent, the Borrower and the Subsidiaries or (b) the sale of any one or more
exchanges of the Parent, the Borrower and the Subsidiaries.


 


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and
an Eligible Assignee (with the consent of any party whose consent is required
by Section 9.04), and accepted by the Administrative Agent, substantially in
the form of Exhibit A or any other form approved by the Administrative
Agent and the Borrower (such approval from the Borrower not to be unreasonably
withheld or delayed).


 


“Authorizations”
means all applications, filings, reports, documents, recordings and
registrations with, and all validations, exemptions, franchises, waivers,
approvals, orders or authorizations, consents, licenses, certificates and
permits from any Governmental Authority necessary in connection with the
execution, delivery or performance of this Agreement and the other Loan
Documents or in connection with the operation of the business of the Parent,
the Borrower and the Subsidiaries.


 


“Available Cash”
means, for any Reference Period, for the Parent, the Borrower and the
Subsidiaries (determined on a consolidated basis, without duplication, for such
Reference Period), the sum (which may be negative) of Adjusted EBITDA for such
Reference Period minus


 


4





















 


(a) the
sum of (i) to the extent added to Consolidated Net Income in determining such
Adjusted EBITDA, Cash Interest Expense paid or accrued in such Reference Period,
(ii) Capital Expenditures made during such Reference Period, excluding any
Capital Expenditures financed with the proceeds of (A) Indebtedness permitted
hereunder and identified pursuant to Section 5.01(c) as having been applied to
finance Capital Expenditures (other than any Capital Expenditures financed with
the proceeds of Revolving Loans), (B) issuances of Equity Interests, (C)
permitted sales of assets or (D) casualty or condemnation events, (iii) cash
consideration paid for Permitted Acquisitions (excluding any such acquisitions
to the extent financed with the proceeds of (A) Indebtedness permitted
hereunder and identified pursuant to Section 5.01(c) as having been applied to
finance acquisitions, (B) issuances of Equity Interests, (C) permitted sales of
assets or (D) casualty or condemnation events), (iv) scheduled payments of
principal of such Person’s Indebtedness made or payable during such Reference
Period, (v) voluntary prepayments of Indebtedness of such Person made during
such Reference Period (other than prepayments of Revolving Loans) and
prepayments of the Loans made pursuant to paragraphs (c) and (d) of Section
2.11 during such Reference Period (other than prepayments of Revolving Loans),
(vi) to the extent added to Consolidated Net Income in determining such
Adjusted EBITDA, Taxes paid in cash for such Reference Period, (vii) to the
extent added to Consolidated Net Income in determining such Adjusted EBITDA,
Transaction Expenses incurred during such Reference Period other than Transaction
Expenses financed with the proceeds of Indebtedness or issuances of Equity
Interests, (viii) to the extent added to Consolidated Net Income in determining
such Adjusted EBITDA, the cash cost of any extraordinary, non-recurring or
unusual losses, during such Reference Period and (ix) to the extent added to
Consolidated Net Income in determining such Adjusted EBIDTA, payments made in
cash during such Reference Period on account of non-cash losses or non-cash
charges expensed during or prior to such Reference Period, plus
(b) to the extent not included in determining such Adjusted EBITDA,
(i) the cash amount realized in respect of extraordinary, non-recurring or
unusual gains, and (ii) the cash amount realized on gains on sales of
assets, during such Reference Period.


 


“Available
Equity Issuance Amount” means, with respect to the amount of Permitted
Acquisitions or other Investments that may be made under Sections 6.04(f)
and (p), or Restricted Payments that may be made under Section 6.08(a)(iv) or
prepayments of Indebtedness that may be made under Section 6.08(b)(viii),
as at any date of determination, (a) the aggregate amount of Net Proceeds
received by the Parent or the Borrower from the sale or issuance of Equity
Interests (other than Disqualified Stock and the Equity Issuance) during the
period from the Closing Date to and including such date of determination minus
(b) the sum of (i) the aggregate amount of such Net Proceeds applied to make
Permitted Acquisitions and Investments pursuant to Sections 6.04(f) and
(p) from the Closing Date and prior to such date of determination plus
(ii) the aggregate amount of such Net Proceeds applied to make Restricted
Payments pursuant to Section 6.08(a)(iv) from the Closing Date and prior to
such date of determination plus (iii) the aggregate amount of such
Net Proceeds applied to make Capital Expenditures from the Closing Date and
prior to such date of determination plus (iv) the aggregate amount
of such Net Proceeds applied to prepay Indebtedness under Section 6.08(b)(viii)from
the Closing Date and prior to such date of determination.


 


“Board”
means the Board of Governors of the Federal Reserve System of the United States
of America.


 


5





















 


“Borrower”
means Alaska Communications Systems Holdings, Inc., a Delaware corporation.


 


“Borrowing”
means (a) Loans of the same Class and Type, made, converted or continued on the
same date and, in the case of Eurodollar Loans, as to which a single Interest
Period is in effect, or (b) a Swingline Loan.


 


“Borrowing
Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.


 


“Business Day”
means any day that is not a Saturday, Sunday or other day on which commercial
banks in New York City or Alaska are authorized or required by law to remain
closed; provided that, when used in connection with a Eurodollar Loan,
the term “Business Day” shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.


 


“Capital Expenditures”
means, for any period, without duplication, (a) the additions to property,
plant and equipment and other capital expenditures of the Parent, the Borrower
and its consolidated Subsidiaries that are (or would be) set forth in a
consolidated statement of cash flows of the Parent for such period prepared in
accordance with GAAP and (b) Capital Lease Obligations incurred by the Parent,
the Borrower and its consolidated Subsidiaries during such period.


 


“Capital Lease
Obligations” of any Person means the obligations of such Person to pay rent
or other amounts under any lease of (or other arrangement conveying the right
to use) real or personal property, or a combination thereof, which obligations
are required to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP, and the amount of such obligations shall be
the capitalized amount thereof determined in accordance with GAAP.


 


“Cash Interest
Expense” means, for any period, for the Parent, the Borrower and the Subsidiaries
determined on a consolidated basis without duplication in accordance with GAAP,
the excess of (a) the sum of (i) Consolidated Interest Expense plus (ii)
any interest accrued during such period in respect of Indebtedness that is
required to be capitalized rather than included in consolidated interest
expense for such period minus (b) the sum of (i) to the extent included
in the determination of the sum in clause (a) above for such period, non-cash
amounts attributable to amortization of financing costs paid in a previous
period (including deferred Transaction Expenses and other non-cash interest
expense), plus (ii) to the extent included in the determination of the
sum in clause (a) above for such period, non-cash amounts attributable to
amortization of debt discounts or accrued interest payable in kind for such
period, plus (iii) any other non-cash amounts included in the
determination of clause (a) above for such period, minus (c) the
aggregate amount of all cash interest income earned in respect of Permitted
Investments during such period.


 


“CFC” means
a “controlled foreign corporation” under section 957 of the Code.


 


“Change in
Control” means (a) the Parent fails to own 100% of the direct Equity
Interests in the Borrower; (b) the acquisition of ownership, directly or
indirectly, beneficially or


 


6





















 


of
record, by any Person or group (within the meaning of the Exchange Act and the
rules of the SEC thereunder as in effect on the date hereof) other than the Sponsor,
of Equity Interests representing more than 35% on a fully diluted basis of the
aggregate ordinary voting power for the election of directors of the Parent;
(d) the occupation of a majority of the seats (other than vacant seats) on the
board of directors of the Parent by Persons who were neither (i) nominated by
the board of directors of the Parent, (ii) appointed by directors so nominated
nor (iii) designated or nominated by the Sponsor; or (e) the occurrence of a “Change
of Control”, “Change in Control” or similar occurrence under any Material
Indebtedness of the Borrower or any of the Subsidiaries.


 


“Change in Law”
means (a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any LC Issuer or any Lender (or,
for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender’s or such LC Issuer’s holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.


 


“CIBC”
means Canadian Imperial Bank of Commerce.


 


“Class”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans, Term Loans,
Incremental Loans or Swingline Loans. 
Each Series of Incremental Loan Commitments, Incremental Loan Borrowings
or Incremental Loans shall be deemed a separate Class of Commitments,
Borrowings or Loans, respectively, hereunder, unless such Series is deemed an
increase to the Term Commitment (as contemplated by Section 2.01(c)), in which
case the Incremental Loan Commitments, Incremental Loan Borrowings and
Incremental Loans of such Series shall constitute part of the Term Commitments,
Term Borrowings or Term Loans, as applicable.


 


“Closing Date”
means the date on or prior to February 28, 2005 in which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).


 


“Code”
means the Internal Revenue Code of 1986, as amended from time to time.


 


“Collateral”
means any and all property, assets or revenue of the Loan Parties subject to
the Lien of any Security Documents (including all “Collateral” under and as
defined in any applicable Security Document).


 


“Collateral
Account” has the meaning specified in Section 4.01(q).


 


“Collateral
Agent” has the meaning assigned to such term in the Security Agreement.


 


“Commitment”
means a Revolving Commitment, Term Commitment or Incremental Loan Commitment,
or any combination thereof (as the context requires).


 


“Communications
Law” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or


 


7





















 


entered
into by any Governmental Authority (including the FCC and the RCA) relating in
any way to the offering or provision of communications.


 


“Communications
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs, fines, penalties or indemnities), of the Borrower
or any Subsidiary directly or indirectly resulting from or based upon (a) the
violation of any Communications Law, (b) the generation or use of
communications, (c) exposure to communications or radio frequency emissions or
(d) any contract, agreement or other consensual agreement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.


 


“Consolidated
Interest Expense” means, for any period, the sum (for the Parent, the
Borrower and the Subsidiaries determined on a consolidated basis without
duplication in accordance with GAAP), of all interest expense (including
imputed interest expense in respect of Capital Lease Obligations) for such
period.  For purposes of the foregoing,
Consolidated Interest Expense shall be determined taking into account any net
payments made or received by the Parent, the Borrower or any Subsidiary under
Hedging Agreements.


 


“Consolidated
Net Income” means, for the Parent, the Borrower and the Subsidiaries
(determined on a consolidated basis without duplication in accordance with
GAAP) for any period, the net income (or loss) after provision for taxes of the
Parent, the Borrower and the Subsidiaries on a consolidated basis for such
period taken as a single accounting period.


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Crest Assets”
means assets acquired from Crest Communications L.L.C. and its Affiliates in
consideration for cancellation or termination of existing obligations owed by
Crest Communications L.L.C. to the Parent and its Subsidiaries.


 


“Cumulative
Distributable Cash” means, for the Parent, the Borrower and the
Subsidiaries as of any date of determination, the sum of (a) $55,000,000 plus
(b) the amount of regularly-scheduled dividend payments to be made during the
period commencing on the Closing Date through the date of delivery pursuant to
Section 5.01 of the financial statements for the first full fiscal quarter
following the Closing Date in an aggregate amount not to exceed $18,000,000, plus
(c) net proceeds received from asset sales not required to be applied to prepay
the Loans pursuant to Section 2.11(b)(i)(B), plus (d) Available
Cash for the Reference Period most recently ended prior to such date, minus
(e) the aggregate amount of (x) Restricted Payments made pursuant to
Section 6.08(a)(iii), (y) payments in respect of Indebtedness made
pursuant to Section 6.08(b)(vii)(B) and (z) Investments made pursuant to
Section 6.04(o) net of any Recoveries thereof received during such
Reference Period, in each case paid in cash during the period commencing on the
Closing Date through the last day of such Reference Period.


 


8





















 


“Default”
means any event or condition that constitutes an Event of Default or that upon
notice, lapse of time or both would, unless cured or waived, become an Event of
Default.


 


“Disclosed Matters”
means the actions, suits and proceedings and the environmental matters
disclosed on Schedule 3.06.


 


“Disqualified
Stock” means, with respect to any Person, any Equity Interest that by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable or exercisable) or upon the happening of any
event:  (a) matures or is mandatorily
redeemable pursuant to a sinking fund obligation or otherwise in whole or in
part, in each case on or prior to the 180th day following the Term Maturity
Date; (b) is convertible or exchangeable for Indebtedness or Disqualified
Stock; or (c) is redeemable at the option of the holder thereof, in whole or in
part, in each case on or prior to the 180th day following the Term Maturity
Date; provided, however, that any Equity Interests that would not
constitute Disqualified Stock but for the provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such Equity
Interests upon the occurrence of an “asset sale” or “Change of Control”
occurring prior to the 180th day following the Term Maturity Date shall not
constitute Disqualified Stock if the “asset sale” or “Change of Control”
provisions applicable to such Equity Interests are not more favorable to the holders
of such Equity Interests than the “asset sale” provisions and the “Change of
Control” provisions, customarily contained in senior or senior subordinated
notes of similar issuers issued under Rule 144A of the Securities Act of 1933,
in each case as reasonably determined by the Administrative Agent.


 


“Dividend
Suspension Period” means any period (a) commencing on the date of delivery
of a certificate pursuant to Section 5.01(c) showing that, for the then most
recently ended period of four consecutive fiscal quarters of the Parent, the
Total Leverage Ratio is greater than 5.00 to 1 (or on the date upon which the
Borrower shall fail to deliver such certificate when required under Section
5.01(c)), and (b) ending on the date of delivery of a certificate pursuant to
Section 5.01(c) showing that, for the then most recently ended period of four
consecutive fiscal quarters of the Parent, the Total Leverage Ratio is equal to
or less than 5.00 to 1.


 


“dollars”
or “$” refers to lawful money of the United States of America.


 


“Domestic
Lender” has the meaning specified in Section 2.17(f).


 


“Domestic
Subsidiary” means any Subsidiary organized under the laws of the United
States of America or any State thereof.


 


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i)
the Administrative Agent, (ii) in the case of any assignment of a Revolving
Commitment, the LC Issuer, and (iii) unless an Event of Default has occurred
and is continuing, the Borrower (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s  Subsidiaries.


 


9





















 


“Environmental
Laws” means all applicable laws, rules, regulations, codes, ordinances,
orders, decrees, judgments, injunctions, or final and legally binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating to the environment, preservation or reclamation of natural
resources or the management, Release or threatened Release of any Hazardous
Material.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental investigation and remediation,
natural resource damages, fines, penalties or indemnities), of the Parent, the
Borrower or any Subsidiary directly or indirectly resulting from or based upon
(a) any actual or alleged violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) any actual or alleged exposure to any Hazardous
Materials, (d) the Release or threatened Release of any Hazardous Materials or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.


 


“Environmental
Permit” means any permit, approval, identification number, license
or other authorization required under any Environmental Law.


 


“Equity
Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or
other equity ownership interests in a Person and any options warrants or other
rights to acquire such Equity Interests, but excluding any debt securities
convertible into such Equity Interests.


 


“Equity
Issuance” means the issuance of common stock of the Parent in connection
with the Transactions for gross proceeds of up to $75,000,000 (it being
understood that any gross proceeds in excess of $75,000,000 shall be deemed not
to constitute the Equity Issuance).


 


“Equity Rights”
means, with respect to any Person, any subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including any
stockholders’ or voting trust agreements) for the issuance or sale of, or
securities convertible into, any additional shares of capital stock of any
class, or partnership or other ownership interests of any type in, such Person.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.


 


“ERISA Event”
means (a) any “reportable event”, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence with respect to
any Plan of an “accumulated funding deficiency” (as defined in Section 412 of
the Code or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section


 


10





















 


303 of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Parent or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Parent or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Parent or any ERISA
Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Parent or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is insolvent
or in reorganization, within the meaning of Title IV of ERISA.


 


“Eurodollar”,
when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate
determined by reference to the Adjusted LIBO Rate.


 


“Event of
Default” has the meaning assigned to such term in Article VII.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended from time to time and any
successor statute.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, any LC Issuer, the
Swingline Lender or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above, (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that (i) is in effect and
would apply to amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office),
except to the extent that (A) in the case of a designation of a new lending
office, such Foreign Lender or (B) in the case of an assignment, the assignor
of such Foreign Lender, was entitled, at the time of such designation or
assignment (as the case may be), to receive additional amounts from the
Borrower with respect to any withholding tax pursuant to Section 2.17(a), (ii)
is attributable to such Foreign Lender’s failure to comply with Section 2.17(e)
or (iii) is not applicable to amounts payable to such Foreign Lender at the
time such Foreign Lender becomes party to this Agreement or designates a new
lending office, unless either (x) such Foreign Lender becomes a party to this
Agreement by assignment and the assignor of such Lender was entitled at the
time of assignment to receive additional amounts from the Borrower with respect
to any withholding tax pursuant to Section 2.17(a) (provided that such Foreign
Lender shall not be entitled to receive additional amounts from the Borrower in
excess of the amount to which its assignor was entitled) or (y) such
withholding tax is imposed as a result of a change in applicable law, treaty or
regulation that becomes effective after the date such Foreign Lender becomes a
party to this Agreement or designates a new lending office, as applicable, and
(d) any taxes, in the case of a Domestic Lender, attributable to such Lender’s
failure to comply with Section 2.17(d).


 


11





















 


“Existing Credit
Agreement” means the Credit Agreement dated as of August 26, 2003 among the
Borrower, the Parent, the lenders and agents party thereto and JPMorgan Chase
Bank, N.A., as administrative agent.


 


“FCC” means
the United States Federal Communications Commission or any successor agency
thereof.


 


“Federal Funds
Effective Rate” means, for any day, the weighted average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.


 


“Financial
Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower or the Parent, as applicable.


 


“Fixed Charges”
means, for the Parent, the Borrower and the Subsidiaries for any period, the
sum of (a) Cash Interest Expense plus (b) Taxes based on income of the
Parent, the Borrower and the Subsidiaries paid in cash in respect of income for
such period.


 


“Fixed Charges
Coverage Ratio” means, as at the last day of any fiscal quarter, the ratio
of (a) Adjusted EBITDA of the Parent, the Borrower and the Subsidiaries for the
period of four consecutive fiscal quarters of the Parent ended on such last day
to (b) Fixed Charges for such period, provided that, until four
complete fiscal quarters shall have elapsed subsequent to the Closing Date,
Fixed Charges shall exclude cash interest expense paid on the Senior
Subordinated Notes and the Senior Unsecured Notes and cash interest income
received with respect to amounts held in the Senior Unsecured Notes Account,
the Senior Subordinated Notes Account and the Collateral Account during such
period and shall be calculated on an annualized basis for the period commencing
on the Closing Date through and including the applicable date and shall then be
multiplied by a fraction, the numerator of which is 365 and the denominator of
which is the number of days in such period.


 


“Foreign Lender”
has the meaning specified in Section 2.17(e).


 


“Foreign
Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or
the District of Columbia.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


 


“GAAP”
means generally accepted accounting principles as in effect in the United
States of America.


 


12





















 


“Governmental
Authority” means the government of the United States of America, any other
nation or any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


 


“Guarantee”
of or by any Person (the “guarantor”) means any obligation, contingent
or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other payment obligation of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly,
and including any obligation of the guarantor, direct or indirect, (a) to
purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other payment obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other payment obligation of the payment
thereof, (c) to maintain working capital, equity capital or any other financial
statement condition or liquidity of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other payment obligation, or (d) as
an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided that the
term Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.  The amount
of any Guarantee of any guarantor shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made and (b) the maximum amount for which
such guarantor may be liable pursuant to the terms of the instrument embodying
such Guarantee, unless such primary obligation and the maximum amount for which
such guarantor may be liable are not stated or determinable, in which case the
amount of such Guarantee shall be such guarantor’s maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.


 


“Guarantee
Agreements” means the Parent Guarantee Agreement and the Subsidiary
Guarantee Agreement.


 


“Hazardous
Materials” means all radioactive substances or wastes and all hazardous or
toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated
biphenyls, radon gas, infectious or medical wastes, and all chemicals,
materials, pollutants, contaminants, substances or wastes of any nature
prohibited, limited or regulated by or pursuant to any Environmental Law.


 


“Hedging
Agreement” means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or
currency exchange rate or commodity price hedging arrangement.


 


“Incremental
Loan” has the meaning assigned to such term in clause (c) of Section 2.01.


 


13





















 


“Incremental
Loan Amendment” means any amendment to this Agreement pursuant to which
Incremental Loan Commitments of any Series are established pursuant to Section
2.01(c).


 


“Incremental
Loan Commitment” means, with respect to each Incremental Loan Lender of any
Series, the commitment, if any, of such Lender to make Incremental Loans of
such Series hereunder.  The initial
amount of each Lender’s Incremental Loan Commitment of any Series will be
specified in the Incremental Loan Amendment for such Series, or will be set
forth in the Assignment and Assumption pursuant to which such Lender shall have
assumed its Incremental Loan Commitment of such Series.  The aggregate amount of the Incremental Loan
Commitments on the Closing Date is zero and at any time thereafter shall not
exceed $100,000,000.


 


“Incremental
Loan Lender” means a Lender with an Incremental Loan Commitment or an
outstanding Incremental Loan.


 


“Indebtedness”
of any Person means, without duplication, (a) all obligations of such Person
for borrowed money or with respect to advances of any kind, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar instruments,
(c) all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
that would be shown as a long-term liability on the liability side of the
balance sheet of such Person in accordance with GAAP, (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed (provided that if such obligations have not been assumed,
the amount of such Indebtedness included for the purposes of this definition
will be the amount equal to the lesser of the fair market value of such
property and the amount of the Indebtedness secured), (f) all Guarantees by
such Person of Indebtedness (other than Indebtedness to the extent included in
clause (e)) of others, (g) all Capital Lease Obligations and Synthetic Lease
Obligations of such Person, (h) unless fully cash collateralized, all
obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) unless fully cash
collateralized, all obligations, contingent or otherwise, of such Person in
respect of bankers’ acceptances.  The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable
therefor.  Notwithstanding any of the
foregoing, Indebtedness shall not include accrued expenses and deferred tax and
other credits incurred by any Person in the ordinary course of business.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes and Other Taxes.


 


“Information
Materials” means (a) the Information Memorandum relating to the Borrower
and the Transactions and provided by the Borrower to the Lenders in connection
with the Borrower’s application for credit and (b) the Registration Statement
as amended and supplemented through the date hereof.


 


14





















 


“Information
Memorandum” means the Confidential Information Memorandum dated January,
2005 relating to the Borrower and the Commitments, including the Borrower’s
10-Q statement as of September 30, 2004 and 10-K for 2003 attached thereto.


 


“Intellectual
Property Security Agreement” means the Intellectual Property Security
Agreement covering Collateral, substantially in the form of Annex 1 to the
Security Agreement.


 


“Intercompany
Subordination Agreement” means an intercompany subordination agreement
between the Loan Parties and the Administrative Agent, substantially the form
of Exhibit I.


 


“Interest
Election Request” means a request by the Borrower to convert or continue a
Borrowing in accordance with Section 2.07.


 


“Interest Payment
Date” means (a) with respect to any ABR Loan (other than a Swingline Loan),
the last day of each March, June, September and December, (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid
in accordance with the terms of this Agreement.


 


“Interest
Period” means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six or (with
the approval of each of the affected Lenders) nine or twelve months thereafter,
as the Borrower may elect; provided that (a) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any such Interest
Period that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. 
For purposes hereof, the date of a Borrowing initially shall be the date
on which such Borrowing is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.


 


“Investment”
means the acquisition of (including pursuant to any merger with any Person that
was not a Wholly Owned Subsidiary prior to such merger) any Equity Interests in
or evidences of indebtedness or other securities (including any option, warrant
or other right to acquire any of the foregoing) of, the making of any loans or
advances to or capital contributions in, the Guarantee of any obligations of,
or the purchase or acquisition (in one transaction or a series of transactions)
of any assets of any other Person constituting a business unit.


 


“LC
Disbursement” means a payment made by an LC Issuer pursuant to a Letter of
Credit.


 


15





















 


“LC Exposure”
means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount
of all LC Disbursements that have not yet been reimbursed by or on behalf of
the Borrower at such time.  The LC
Exposure of any Revolving Lender at any time shall be its Applicable Percentage
of the total LC Exposure at such time.


 


“LC Issuer”
means CIBC and each other Revolving Lender approved by the Administrative Agent
and designated by the Borrower as an “LC Issuer” hereunder that has agreed to
such designation and has been approved as an “LC Issuer” hereunder by the
Administrative Agent (such approval not to be unreasonably withheld), each in
its capacity as the issuer of Letters of Credit hereunder, and in each case its
successors in such capacity as provided in Section 2.05.  Any LC Issuer may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of such LC Issuer,
in which case the term “LC Issuer” shall include any such Affiliate with respect
to Letters of Credit issued by such Affiliate.


 


“Leased Real
Property” means each parcel of real property leased or subleased by any
Loan Party pursuant to any Real Property Lease.


 


“Lenders”
has the meaning set forth in the preamble hereto.  The term “Lenders” also includes the
Incremental Loan Lenders and, unless the context otherwise requires, the
Swingline Lender.


 


“Letter of
Credit” means any letter of credit issued pursuant to this Agreement.


 


“Letter of
Credit Collateral Account” has the meaning assigned to such term in Section
2.05(j).


 


“LIBO Rate”
means, with respect to any Eurodollar Borrowing for any Interest Period, the
rate appearing on the page of the Telerate Screen which displays an average
British Bankers Association Interest Settlement Rate (such page currently being
page number 3740 or 3750, as available) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as
the rate for dollar deposits with a maturity comparable to such Interest
Period.  In the event that such rate is
not available at such time for any reason, then the “LIBO Rate” with respect to
such Eurodollar Borrowing for such Interest Period shall be the arithmetic mean
of the rates at which dollar deposits in amounts approximately equal to the
amount of each Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered by the principal London offices of four major banks
selected by the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.


 


“License
Subsidiary” means a Subsidiary of the Borrower, the sole purpose of which
shall be to hold the Operating Licenses of one operating Subsidiary and to
perform functions incidental thereto.


 


“Lien”
means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of
such asset and (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title


 


16





















 


retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset.


 


“Loan Documents”
means this Agreement, the Security Documents, the Intercompany Subordination
Agreement and any promissory note executed and delivered pursuant to Section
2.09(d).


 


“Loan Parties”
means the Borrower, the Parent and the Subsidiary Loan Parties.


 


“Loans”
means the Term Loans, the Revolving Loans and the Incremental Loans and, as the
context may require, the Swingline Loans.


 


“Material
Adverse Effect” means a material adverse effect on (a) the business,
assets, results of operations, properties or financial condition of the Parent,
the Borrower and the Subsidiaries taken as a whole, (b) the ability of any Loan
Party to perform any of its obligations under any Loan Document or (c) the
rights of or benefits available to the Lenders under any Loan Document.


 


“Material
Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Hedging Agreements, of any
one or more of the Parent, the Borrower and the Subsidiaries in an aggregate
principal amount exceeding $10,000,000. 
For purposes of determining Material Indebtedness, the “principal amount”
of the obligations of the Parent, the Borrower or any Subsidiary in respect of
any Hedging Agreement at any time shall be the aggregate net amount (giving
effect to any netting agreements) that the Parent, the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated
at such time.


 


“Material Real
Property” means (a) each parcel of real property owned, leased or subleased
by any Loan Party that is subject to a mortgage or leasehold mortgage under the
Existing Credit Agreement, (b) all Mortgaged Property, (c) all Owned Real
Property of a Loan Party with an assessed value in excess of $150,000 (other
than the Owned Real Property listed on Schedule 1.01-D) and (d) each other
parcel of real property that is owned or acquired by a Loan Party that is
determined to be material to the business or operations of the Loan Parties,
taken as a whole.


 


“Material
Subsidiary” means any Subsidiary (a) which has total revenues equal to or
greater than 5% of the total revenues of the Parent and its Subsidiaries on a
consolidated basis, or (b) for which the fair market value of its assets is
equal to or greater than 5% of the total assets of the Parent and its
Subsidiaries on a consolidated basis, or (c) which has Adjusted EBITDA equal to
or greater than 5% of the total Adjusted EBITDA of the Parent and its
Subsidiaries on a consolidated basis, and in any case, includes any License
Subsidiary and any Subsidiary that owns or leases any communications towers.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


“Mortgage
Policies” has the meaning set forth in Section 5.17(b).


 


17





















 


“Mortgaged
Property” means, initially, each parcel of owned real property and the
improvements thereto owned by a Loan Party and identified on Schedule
3.05(c)(ii), and after the Closing Date, any New Mortgaged Property; provided
that in no event shall Mortgaged Property include any portion of the Crest
Assets.


 


“Mortgage”
means each of the mortgages, deeds of trust, trust deeds, leasehold mortgages
and leasehold deeds of trust in substantially the form of Exhibit E hereto and
otherwise in form and substance reasonably satisfactory to the Administrative
Agent covering the Mortgaged Properties, in each case, as amended, restated,
supplemented or otherwise modified from time to time.


 


“Multiemployer
Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA.


 


“New Mortgaged
Property” has the meaning set forth in Section 5.12.


 


“Net Proceeds”
means, with respect to any event, (a) the cash proceeds received in respect of
such event, including (i) any cash received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
received, (ii) in the case of a casualty, insurance proceeds, and (iii) in the
case of a condemnation or similar event, condemnation awards and similar
payments, net of (b) the sum of (i) all fees and out-of-pocket expenses paid by
or on behalf of the Parent, the Borrower and the Subsidiaries (other than to an
Affiliate of the Borrower except for the Sponsor) in connection with such
event, (ii) in the case of a sale, transfer or other disposition of an asset
(including pursuant to a sale and leaseback transaction or a casualty or a
condemnation or similar proceeding), the amount of all payments required to be
made by the Parent, the Borrower and the Subsidiaries as a result of such event
to repay Indebtedness (other than Loans) secured by such asset or otherwise
subject to mandatory prepayment as a result of such event and (iii) the amount
of all taxes paid (or estimated to be payable) by the Parent, the Borrower and the
Subsidiaries (including, without limitation, sales, VAT and transfer taxes
which will be payable by the Parent, the Borrower and the Subsidiaries), and
the amount of any reserves established by the Parent, the Borrower and the
Subsidiaries to fund contingent liabilities reasonably estimated to be payable,
in each case during the year that such event occurred or the next two
succeeding years and that are directly attributable to such event (as
determined reasonably and in good faith by the chief financial officer of the
Borrower); provided, however, that in the case of taxes that are
deductible as estimated taxes under this clause (iii), the Parent, the
Borrower or such Subsidiary may deduct an amount (the “Reserved Amount”)
equal to the amount reserved in accordance with GAAP for the Parent’s, the
Borrower’s or such Subsidiary’s reasonable estimate of such taxes, other than
taxes for which the Parent, the Borrower 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 Proceeds”
of the type for which such taxes were reserved for all purposes hereunder.


 


“Obligations”
has the meaning assigned to such term in (a) the Security Agreement, (b) the
Pledge Agreement and (c) the Guarantee Agreements.


 


18





















 


“Operating
Licenses” means all material licenses, permits and other approvals issued
by the FCC or RCA to the Parent, the Borrower or any Subsidiary, including any
paging, mobile telephone, specialized mobile radio, microwave or other license,
necessary for the operation of the business of the Parent, the Borrower and the
Subsidiaries.


 


“Other Taxes”
means any and all present or future recording stamp, documentary, excise,
transfer, property or similar taxes, charges or levies arising from any payment
made under any Loan Document or from the execution, delivery or enforcement of,
or otherwise with respect to, any Loan Document, and any and all interest and
penalties related thereto.


 


“Owned Real
Property” means each parcel of owned real property listed on Schedule
3.05(c)(i).


 


“Parent”
means Alaska Communications Systems Group, Inc., a Delaware corporation.


 


“Parent
Guarantee Agreement” means the Guarantee Agreement dated as of the date
hereof made by the Parent in favor of the Administrative Agent for the benefit
of the Secured Parties, substantially in the form of Exhibit F.


 


“Participant”
has the meaning assigned to such term in clause (e) of Section 9.04.


 


“Patriot Act”
means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 2001,
Pub. L. 107-56, as it may be amended or otherwise modified from time to time.


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


 


“Perfection
Certificate” means a certificate in the form of Exhibit C or any
other form approved by the Administrative Agent.


 


“Permitted
Acquisition” means any acquisition, to the extent such acquisition occurs
after the Closing Date, of all or substantially all the assets of, or shares or
other Equity Interests in, a Person or division or line of business of a Person
that is engaged in a reasonably related (ancillary or complementary) line of
business or lines of business, as reasonably determined by the Board of
Directors of the Borrower (or any subsequent Investment made in a previously
acquired Permitted Acquisition), that was not preceded by an unsolicited tender
offer for such Person, if immediately after giving effect thereto


 


(a)           no Default or Event of Default shall
have occurred and be continuing or would result therefrom,


 


(b)           all transactions related thereto
shall be consummated in accordance with applicable law,


 


(c)           such acquired or newly formed
corporation, partnership, association or other business entity shall be a
domestic Wholly Owned Subsidiary and all actions


 


19





















 


required to be taken, if
any, with respect to such acquired or newly formed Subsidiary under Section
5.12 shall have been taken,


 


(d)           (i) the Administrative Agent shall
have received a certificate of a Financial Officer to the effect that, after
giving effect to such acquisition or formation, no Default or Event of Default
shall have occurred and be continuing and the Borrower and its Subsidiaries
will be in compliance with the covenants contained in Section 6.12 determined
on a pro forma basis as if such acquisition had occurred at the beginning of
the relevant periods for determining such compliance and as if any Indebtedness
incurred in connection therewith was incurred at the beginning of such relevant
periods (and as if any Indebtedness repaid was repaid at the beginning of such
relevant period), together with (A) calculations in form and detail
satisfactory to the Administrative Agent demonstrating such compliance and (B)
all relevant financial information for such subsidiary or assets reasonably
requested by the Administrative Agent, and (ii) any acquired or newly formed
Subsidiary shall not be liable for any Indebtedness (except for Indebtedness
permitted by Section 6.01), and


 


(e)           after giving pro forma effect to such
acquisition or formation, no Dividend Suspension Period shall have commenced
and be continuing or would result therefrom.


 


“Permitted
Additional Indebtedness” means Indebtedness of the Parent or the Borrower
(which may be guaranteed by the Subsidiaries, the Borrower and the Parent, as
the case may be,) incurred after the date hereof, provided that (a) such
Indebtedness (and any guarantees thereof) shall be senior subordinated notes
and shall on the date of issuance provide a cash yield not to exceed a market
rate of interest per annum, (b) such Indebtedness shall be unsecured (other
than by the proceeds thereof held in escrow pending a Permitted Acquisition),
(c) no scheduled payments of principal, prepayments, redemptions or sinking
fund or like payments on the principal of such Indebtedness shall be required
prior to the 180th day following the Term Maturity Date (other than
any repayment of proceeds thereof held in escrow pending a Permitted
Acquisition), (d) the terms and conditions of such Indebtedness shall not be
more restrictive on the Parent, the Borrower and the Subsidiaries than the
terms and conditions customarily found in senior or senior subordinated notes
of similar issuers issued under Rule 144A of the Securities Act of 1933 or in a
public offering, in each case as reasonably determined by the Administrative
Agent, and any terms of subordination thereof shall also extend to cover
obligations of the Parent, the Borrower and the Subsidiaries in respect of any
Hedging Agreements to which the Borrower and any of the Lenders and their
respective Affiliates are parties, (e) no Dividend Suspension Period or Default
shall have occurred and be continuing at the time of incurrence of such
Indebtedness or would result therefrom and (f) the proceeds of such
Indebtedness are applied, within 60 days of the incurrence thereof, (i) to
finance one or more Permitted Acquisitions (including amounts to be held in
escrow pending a Permitted Acquisition or to repay such Permitted Additional
Indebtedness if the proceeds thereof were held in escrow pending a Permitted
Acquisition that was not consummated), (ii) to effect mandatory prepayments
pursuant to Section 2.11(b), (iii) to refinance, repurchase, defease, acquire or
replace the Senior Unsecured Notes, or (iv) in respect of Restricted Payments
and Capital Expenditures; provided 
that, in the case of clause (iv) only, after giving pro forma effect to
the incurrence of such Indebtedness and any Indebtedness repaid in connection
therewith, the Total Leverage Ratio for the most recently completed fiscal
quarter for which financial statements


 


20





















 


have
been delivered pursuant to Section 5.01 is less than or equal to 4.25 to 1 on
the date of  incurrence of such
Indebtedness.


 


“Permitted
Cost-Savings” means, in connection with each Asset Sale or Permitted
Acquisition involving aggregate consideration in excess of $10,000,000 and
permitted by the terms of this Agreement, those demonstrable cost-savings and
other adjustments to be achieved in connection with such Asset Sale or
Permitted Acquisition, as the case may be, for the 12-month period following
the consummation of such Asset Sale or Permitted Acquisition, in an aggregate amount
not to exceed 5% of Adjusted EBITDA for the most recently completed four fiscal
quarter period, which cost-savings and other adjustments shall be calculated in
accordance with Regulation S-X of the SEC as of each date of determination
prior to the inclusion of the applicable cost-savings and other adjustments in
the calculation of Permitted Cost-Savings, which cost-savings and calculation
shall be set forth in a certificate from a Financial Officer of the Parent
delivered to the Administrative Agent on such date of determination.  It is understood and agreed that, for the
avoidance of duplication, no anticipated cost-savings or other adjustments
shall be included in the calculation of Permitted Cost-Savings for any period
to the extent such anticipated cost-savings or other adjustments are otherwise
reflected in Adjusted EBITDA for such period by virtue of the achievement of
actual cost-savings or other results that were part of the cost-savings or
other adjustments anticipated to be achieved.


 


“Permitted
Encumbrances” has the meaning specified in the Mortgages.


 


“Permitted
Investments” means:


 


(a)           direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition
thereof;


 


(b)           investments in commercial paper
maturing within one year from the date of acquisition thereof and having, at
such date of acquisition, credit ratings of at least A-1 by S&P or P-1 by
Moody’s;


 


(c)           investments in certificates of
deposit, banker’s acceptances and time deposits maturing within 360 days from
the date of acquisition thereof (A) issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, (i) any Lender or (ii)
any domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof that has a combined capital and
surplus and undivided profits of not less than $250,000,000 or a foreign bank
that has a combined capital and surplus and undivided profits of not less than
$125,000,000 or (B) rated at least A by S&P or A2 by Moody’s as of the date
of acquisition;


 


(d)           fully collateralized repurchase
agreements with a term of not more than 30 days for securities described in
clause (a) above and entered into with a financial institution satisfying the
criteria described in clause (c) above;


 


(e)           securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any


 


21





















 


political subdivision or taxing authority of
any such state, commonwealth or territory, the securities of which state,
commonwealth, territory, political subdivision or taxing authority (as the case
may be) are rated at least A by S&P or A by Moody’s, as of the date of
acquisition;


 


(f)            money market mutual or similar funds
that invest primarily in assets satisfying the requirements of clauses (a)
through (e) of this definition;


 


(g)           money market funds that (i) comply
with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act
of 1940, as amended,  (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least
$5,000,000,000, in each case, such requirements being measured or calculated as
of the date of the acquisition of or investment in such Permitted Investment;


 


(h)           asset backed securities having
ratings of at least AAA by S&P or Aaa by Moody’s, as of the date of
acquisition;


 


(i)            auction rate securities, corporate
bonds, medium term notes and euro notes issued by foreign or domestic entities
having ratings of at least A by S&P or A2 by Moody’s, as of the date of
acquisition; and


 


(j)            contributions to or investments
related to the Parent’s, the Borrower’s or any Subsidiary’s obligations under
deferred compensation plans and pension plans which plans have been approved by
the Parent’s, the Borrower’s or such Subsidiary’s Board of Directors.


 


“Permitted
Liens” means:


 


(a)           Liens imposed by law for taxes and
other governmental charges that are not yet due or are being contested in
compliance with Section 5.05;


 


(b)           carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s and other like Liens imposed by law and Landlords’
liens, in each case, arising in the ordinary course of business and securing
obligations that (i) are not overdue by more than 30 days, (ii) do not in the
aggregate materially detract from the value of such property or materially
impair the use thereof in the business operations of the Parent, the Borrower
and its Subsidiaries or (iii) are being contested in compliance with
Section 5.05;


 


(c)           pledges and deposits made in
compliance with workers’ compensation, unemployment insurance and other social
security laws or regulations (and Liens to secure bonds or letters of credit
issued for such purpose);


 


(d)           deposits to secure the performance of
bids, trade contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds or deposits and other obligations of a like nature, in each
case in the ordinary course of business (and Liens to secure bonds or letters
of credit issued for such purpose);


 


(e)           judgment liens in respect of
judgments, decrees, awards or attachments that do not constitute an Event of
Default under clause (k) of Article VII;


 


22





















 


(f)            Permitted Encumbrances;


 


(g)           easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not interfere in a material
manner with the ordinary conduct of business of the Borrower or any Subsidiary;
and


 


(h)           Liens existing on the date hereof and
listed on Schedule 1.01-A hereof and renewals, extensions and replacements
thereof; provided that (i) the property covered thereby is not changed,
(ii) the obligations secured thereby shall not be increased (other than to
include accrued and unpaid interest, premiums, and fees, costs and expenses
related thereto), (iii) no additional Loan Parties or their Subsidiaries shall
become a direct or contingent obligor, and (iv) any renewal or extension of any
Indebtedness secured thereby is permitted by Section 6.01(a)(viii) or (xv).


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”
means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or
Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate
is (or, if such Plan were terminated, would under Section 4064 or 4069 of ERISA
be determined to be) an “employer” as defined in Section 3(5) of ERISA.


 


“Pledge
Agreement” means the Pledge Agreement dated as of the date hereof among the
Borrower, the Parent, the Subsidiaries party thereto and the Administrative
Agent for the benefit of the Secured Parties, substantially in the form of
Exhibit D-2.


 


“Prepayment
Event” means:


 


(a)           any sale, transfer or other
disposition (including pursuant to a sale and leaseback transaction) of any
property or asset of the Parent, the Borrower or any Subsidiary, other than
dispositions described in clauses (a) through (h) of Section 6.05, but
only to the extent that the Net Proceeds therefrom have not been applied to
acquire other property useful in the business of the Parent, the Borrower and
the Subsidiaries within 360 days after such event; or


 


(b)           any casualty or other insured damage
to, or any taking under power of eminent domain or by condemnation or similar
proceeding of, any property or asset of the Parent, the Borrower or any
Subsidiary in an aggregate principal amount in excess of $2,000,000 in any
fiscal year of the Borrower, but only to the extent that the Net Proceeds
therefrom have not been applied to repair, restore or replace such property or
asset or acquire other property useful in the business of the Parent, the
Borrower and the Subsidiaries within 360 days after such event; or


 


(c)           the incurrence by the Parent, the
Borrower or any Subsidiary of any Indebtedness, excluding Indebtedness
permitted pursuant to Section 6.01 but including Permitted Additional
Indebtedness except to the extent proceeds of such Permitted


 


23





















 


Additional Indebtedness
are applied within 60 days following such incurrence in accordance with clause
(f) of the definition thereof.


 


“Prime Rate”
means the rate of interest per annum publicly announced or established from
time to time by Canadian Imperial Bank of Commerce as its prime rate in effect
at its principal office in New York City; each change in the Prime Rate shall
be effective from and including the date such change is publicly announced as
being effective and such Prime Rate may not necessarily be the lowest rate
extended to customers.


 


“Purchase Price”
means, without duplication, with respect to any Permitted Acquisition, an
amount equal to the sum of (a) the aggregate consideration, whether cash,
property or securities (including any Indebtedness incurred pursuant to Section
6.01(a)(xv)), paid or delivered by the Borrower and the Subsidiaries in
connection with such acquisition plus (b) the aggregate amount of
liabilities of the acquired business (net of current assets of the acquired
business) that would be required to be reflected on a balance sheet (if such
were to be prepared) of the Borrower and the Subsidiaries after giving effect
to such Permitted Acquisition.


 


“RCA” means
the Regulatory Commission of Alaska or any other agency, commission or similar
body succeeding to the functions of the Regulatory Commission of Alaska.


 


“Recoveries”
means, with respect to any Investments, the aggregate amount of dividends,
distributions or other payments received in cash in respect of such
Investments.


 


“Real Property
Leases” means all leases of real property under which any Loan Party is a
lessee from time to time with an annual rent in excess of $25,000 per year or
that is otherwise determined to be material to the business or operations of
the Loan Parties, taken as a whole.


 


“Reference Period”
means, as at any date, the period commencing on April 1, 2005 and ending on the
last day of the last fiscal quarter for which a certificate pursuant to Section
5.01(c) has been delivered by the Borrower prior to such date.


 


“Register”
has the meaning assigned to such term in Section 9.04(c).


 


“Registration
Statement” means the Parent’s shelf registration statement on form S-3
under the Securities Exchange Act of 1933, with respect to its common stock
filed with the SEC on December 20, 2004.


 


“Related Parties”
means, with respect to any specified Person, such Person’s Affiliates and the
respective directors, trustees, officers, employees, agents and advisors of
such Person and such Person’s Affiliates.


 


“Release”
means any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through
the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata).


 


24





















 


“Required
Lenders” means, at any time, Lenders having Revolving Exposures, Term
Loans, Incremental Loans and unused Commitments representing more than 50% of
the sum of the total Revolving Exposures, outstanding Term Loans, outstanding
Incremental Loans and unused Commitments at such time.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the
Parent, the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any Equity Interests in the Parent, the Borrower or any Subsidiary.


 


“Revolving
Availability Period” means the period from and including the Closing Date
to but excluding the earlier of the Revolving Credit Maturity Date and the date
of termination of the Revolving Commitments.


 


“Revolving
Commitment” means, with respect to each Revolving Lender, the commitment,
if any, of such Lender to make Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender’s Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04.  The initial amount of each Lender’s Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable.  The initial aggregate amount
of the Lenders’ Revolving Commitments is $45,000,000.


 


“Revolving
Credit Maturity Date” means the date that is six years after the Closing
Date or the first Business Day thereafter, if such date is not a Business Day.


 


“Revolving
Exposure” means, (a) with respect to any Revolving Lender at any time, the
sum of the outstanding principal amount of such Revolving Lender’s Revolving
Loans and its LC Exposure and Swingline Exposure at such time and (b) with
respect to all Revolving Lenders at any time, the sum of the outstanding
principal amount of all Revolving Lenders’ Revolving Loans and LC Exposure and
Swingline Exposure at such time.


 


“Revolving
Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure, or both.


 


“Revolving Loan”
means a Loan made pursuant to Section 2.01(a).


 


“S&P”
means Standard & Poor’s Ratings Service.


 


“SEC” means
the United States Securities and Exchange Commission or any successor thereto.


 


“Secured
Hedging Agreements” means (i) each interest
rate Hedging Agreement entered into with any  counterparty
that was a Lender or an Affiliate of a Lender at the time


 


25





















 


such
Hedging Agreement was entered into (unless such counterparty
agrees  with the
Borrower not to be secured by the Collateral under the Loan
Documents), and (ii) each other type of Hedging Agreement
entered into  with any
counterparty that was a Lender or an Affiliate of a Lender at
the time such Hedging Agreement was entered into that is
designated by  the Borrower
to be a Hedging Agreement secured by the Collateral  created
under the Loan Documents.


 


“Secured
Parties” shall have the meaning given such term in the Security Agreement.


 


“Security
Agreement” means the Security Agreement dated as of the date hereof between
the Borrower, the Subsidiary Loan Parties party thereto and the Administrative
Agent for the benefit of the Secured Parties, substantially the form of Exhibit
D-1.


 


“Security
Documents” means the Security Agreement, the Subsidiary Guarantee
Agreements, the Parent Guarantee Agreement, the Pledge Agreement, the
Intercompany Subordination Agreement, Mortgages and each other security
agreement or other instrument or document executed and delivered pursuant to
Section 5.12 or 5.14 to secure, or otherwise providing for collateral security
for, any of the Obligations.


 


“Senior
Secured Debt” means, with respect to Parent, the Borrower and the
Subsidiaries on a consolidated basis at any time (without duplication), all
Adjusted Total Debt of the Parent, the Borrower or any Subsidiary that is
secured by a Lien on any assets of a Loan Party, other than any such
Indebtedness that by its terms is expressly subordinated to the Obligations on
terms satisfactory to the Administrative Agent.


 


“Senior
Secured Leverage Ratio” means,
as of the last day of any fiscal quarter, the ratio of (a) Senior Secured Debt
on such date to (b) Adjusted EBITDA of the Parent, the Borrower and the
Subsidiaries for the period of four consecutive fiscal quarters of the Borrower
ended on such date, all determined on a consolidated basis in accordance with
GAAP.  If during any period for which
Adjusted EBITDA is being determined the Parent, the Borrower or any Subsidiary
shall have consummated any Asset Sale, or any Permitted Acquisition that
involves the payment of aggregate consideration of $200,000 or more and, in the
case of any Permitted Acquisition, to the extent that the entity or assets so
acquired have not been sold, transferred or otherwise disposed of during the
applicable period, then, for purposes of this definition, Adjusted EBITDA shall
be determined on a pro forma basis (including giving pro forma effect to any
Permitted Cost-Savings) as if such Permitted Acquisition or Asset Sale had been
made or consummated on the first day of such period.


 


“Senior
Subordinated Debt Documents” means the indenture and other agreements under
which the Senior Subordinated Notes were issued and all other instruments,
agreements and other documents evidencing or governing the Senior Subordinated
Notes or providing for any Guarantee or other right in respect thereof.


 


“Senior
Subordinated Notes” means the $150,000,000 in aggregate principal amount of
93/8% senior subordinated notes issued by the Borrower
pursuant to the Senior Subordinated Debt Documents on May 14, 1999.


 


26





















 


“Senior
Subordinated Notes Account” has the meaning specified in Section 4.01(q).


 


“Senior
Unsecured Debt Documents” means the indenture and other agreements under
which the Senior Unsecured Notes were issued and all other instruments,
agreements and other documents evidencing or governing the Senior Unsecured
Notes or providing for any Guarantee or other right in respect thereof.


 


“Senior
Unsecured Notes” means the senior unsecured notes due 2011 issued by the
Borrower pursuant to the Senior Unsecured Debt Documents on August 26, 2003.


 


“Senior
Unsecured Notes Account” has the meaning specified in Section 4.01(q).


 


“Series”
has the meaning assigned to such term in Section 2.01(c).


 


“Solvent”
and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the assets of the Loan Parties (taken
as a whole), at a fair valuation, will exceed their debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of the Loan Parties (taken as a whole) will be greater than the
amount that will be required to pay the probable liability of their debts and
other liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured; (c) the Loan Parties (taken
as a whole) will be able to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) the Loan Parties (taken as a whole) will not have
unreasonably small capital with which to conduct the business in which they are
engaged.  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.


 


“Sponsor”
means Fox Paine Capital Fund, L.P. and its Affiliates (other than Affiliates
that are operating companies or Controlled by operating companies).


 


“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal,
special, emergency or supplemental reserves) expressed as a decimal established
by the Board to which the Administrative Agent is subject with respect to the
Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). 
Such reserve percentages shall include those imposed pursuant to such
Regulation D.  Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation.  The Statutory
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.


 


“subsidiary”
means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial 


 


27





















 


statements if such financial statements were prepared in accordance
with GAAP as of such date, as well as any other corporation, limited liability
company, partnership, association or other entity of which securities or other
ownership interests representing more than 50% of the equity or more than 50%
of the ordinary voting power or, in the case of a partnership, more than 50% of
the general partnership interests are, as of such date, owned, controlled or
held, by the parent or one or more subsidiaries of the parent or by the parent
and one or more subsidiaries of the parent.


 


“Subsidiary”
means any subsidiary of the Parent.


 


“Subsidiary
Guarantee Agreement” means the Guarantee Agreement dated as of the date
hereof made by the Subsidiary Loan Parties in favor of the Administrative Agent
for the benefit of the Secured Parties, substantially in the form of Exhibit
G.


 


“Subsidiary
Loan Party” means any Domestic Subsidiary and Foreign Subsidiary that is
not a CFC that is formed or acquired by the Borrower or another Domestic
Subsidiary or Foreign Subsidiary that is not a CFC other than ACS Television,
L.L.C. and ACS Media Holdings LLC.


 


“Swingline
Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. 
The Swingline Exposure of any Lender at any time shall be its Applicable
Percentage of the total Swingline Exposure at such time.


 


“Swingline
Lender” means CIBC INC., in its capacity as lender of Swingline Loans
hereunder.


 


“Swingline
Loan” means a Loan made pursuant to clause (a) of Section 2.04.


 


“Synthetic
Lease Obligations” means, for any Person, obligations under any lease of
any property that is not a capital lease in accordance with GAAP and in respect
of which the lessee retains or obtains ownership of the property so leased for
federal income tax purposes.


 


“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority, and any and all
interest and penalties related thereto.


 


“Term
Commitment” means, with respect to each Term Lender, the commitment, of
such Term Lender to make Term Loans hereunder on the Closing Date, expressed as
an amount representing the maximum aggregate principal amount of the Term Loans
to be made by such Lender hereunder, as such commitment may be reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.  The initial
amount of each Lender’s Term Commitment is set forth on Schedule 2.01, or in
the Assignment and Assumption pursuant to which such Lender shall have assumed
its Term Commitment, as applicable.  The
initial aggregate amount of the Lenders’ Term Commitments is $335,000,000.


 


“Term
Lender” means a Lender with a Term Commitment or an outstanding Term Loan.


 


“Term
Loan” means a Loan made pursuant to clause (b) of Section 2.01.


 


28





















 


“Term
Maturity Date” means the date that is seven years after the Closing Date or
the first Business Day thereafter, if such date is not a Business Day.


 


“Total
Debt” means, with respect to the Parent, the Borrower and the Subsidiaries
as at any date (determined on a consolidated basis without duplication in
accordance with GAAP), the sum of all Indebtedness consisting of Capital Lease
Obligations, Synthetic Lease Obligations, Indebtedness for borrowed money
(including Permitted Additional Indebtedness), Indebtedness in respect of the
net present value of the deferred purchase price of property or services that
would be shown as a long-term liability on the liability side of the balance
sheet of such Person in accordance with GAAP, and Indebtedness arising out of
the Guarantee of any of the foregoing of the Parent, the Borrower and the
Subsidiaries on a consolidated basis at such time.


 


“Total
Leverage Ratio” means, as at the last day of any fiscal quarter, the ratio
of (a) Adjusted Total Debt on such date to (b) Adjusted EBITDA of the Parent,
the Borrower and the Subsidiaries for the period of four consecutive fiscal
quarters of the Borrower ended on such date, all determined on a consolidated
basis in accordance with GAAP.  If during
any period for which Adjusted EBITDA is being determined the Parent, the
Borrower or any Subsidiary shall have consummated any Asset Sale, or any
Permitted Acquisition that involves the payment of aggregate consideration of
$200,000 or more and, in the case of any Permitted Acquisition, to the extent
that the entity or assets so acquired have not been sold, transferred or
otherwise disposed of during the applicable period, then, for purposes of this
definition, Adjusted EBITDA shall be determined on a pro forma basis (including
giving pro forma effect to any Permitted Cost-Savings) as if such Permitted
Acquisition or Asset Sale had been made or consummated on the first day of such
period.


 


“Transaction
Expenses” means actual out-of-pocket costs and expenses associated with the
Transactions and any actual out-of-pocket costs and expenses incurred after the
date hereof associated with any securities offering, investment or acquisition
permitted hereunder (whether or not such offering, investment or acquisition is
consummated).


 


“Transactions”
means, collectively, (a) the tender and consent solicitation of the Senior
Subordinated Notes pursuant to documentation substantially in the form attached
hereto as Schedule 1.01-B, (b) the tender (for up to 35% of the Senior
Unsecured Notes) and consent solicitation of the holders of the Senior
Unsecured Notes to certain other aspects of the Transactions and amendments to
the Senior Unsecured Debt Documents pursuant to documentation substantially in
the form attached hereto as Schedule 1.01-C, (c) the entering into of this
Agreement and the initial Loans made hereunder on the Closing Date, (d) the
Equity Issuance, if any, and (e) the repayment of all obligations under the
Existing Credit Agreement (and the termination of the commitments and security
interests created thereunder).


 


“Type”,
when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined
by reference to the Adjusted LIBO Rate or the Alternate Base Rate.


 


29





















 


“Wholly
Owned Subsidiary” means a Subsidiary all the Equity Interests of which (other
than directors’ qualifying shares) is owned by the Borrower or another Wholly
Owned Subsidiary.


 


“Withdrawal
Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are
defined in Part 1 of Subtitle E of Title IV of ERISA.


 


Section 1.02  Classification of Loans and Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Term Loan”) or by
Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g.,
a “Eurodollar Revolving Loan”). 
Borrowings also may be classified and referred to by Class (e.g.,
a “Revolving Borrowing”) or by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving
Borrowing”).


 


Section 1.03  Terms Generally.  The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms.  The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have
the same meaning and effect as the word “shall.”  Unless the context requires otherwise (a) any
definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified
(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (c) the words “herein”, “hereof’
and “hereunder”, and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.


 


Section 1.04  Accounting Terms; GAAP.  Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time, provided that, if
the Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.


 


30





















 


ARTICLE II



THE LOANS


 


Section 2.01  Commitments and Loans.


 


(a)                                  Revolving
Loans.  Subject to the
terms and conditions set forth herein, each Revolving Lender severally agrees
to make Revolving Loans to the Borrower on the Closing Date and from time to
time during the Revolving Availability Period in an aggregate principal amount
that will not result in such Lender’s Revolving Exposure exceeding such Lender’s
Revolving Commitment; provided that on the Closing Date the maximum
aggregate principal amount of Revolving Loans shall not exceed $5,000,000.  Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.


 


(b)                                 Term
Loans.  Subject to the
terms and conditions set forth herein, each Lender severally agrees to make a
Term Loan to the Borrower on the Closing Date in a principal amount not
exceeding such Lender’s Term Commitment. 
On the Closing Date, proceeds from the Term Loan will be deposited (i)
in the Senior Unsecured Notes Account on terms satisfactory to the
Administrative Agent in an amount equal to pay all amounts due to redeem Senior
Unsecured Notes sufficient to reduce the outstanding principal balance of such
Senior Unsecured Notes to $118,300,000 pursuant to the tender offer
solicitation contemplated by the Transactions and (ii) in the Collateral
Account on terms satisfactory to the Administrative Agent in an amount equal to
the difference of $157,687,146.35 less the amount of funds on deposit in the
Senior Subordinated Notes Account on the Closing Date.  Amounts repaid in respect of Term Loans may
not be reborrowed.


 


(c)                                  Incremental
Loans.  At any time and
from time to time, the Borrower may request that the Lenders (or other
financial institutions agreed to by the Borrower and reasonably acceptable to
the Administrative Agent, the consent of the Administrative Agent in respect
thereof not to be unreasonably withheld) offer to enter into commitments to
make additional term loans (each such loan being herein called an “Incremental
Loan”) under this paragraph (c).  In
the event that one or more of the Lenders (or such other financial
institutions) offer, in their sole discretion, to enter into such commitments,
and such Lenders (or financial institutions) and the Borrower agree as to the
amount of such commitments that shall be allocated to the respective Lenders
(or financial institutions) making such offers and the fees (if any) to be
payable by the Borrower in connection therewith, such Lenders (or financial
institutions) shall become obligated to make Incremental Loans under this
Agreement in an amount equal to the amount of their respective Incremental Loan
Commitments (and such financial institutions shall become “Incremental Loan
Lenders” hereunder).  The Borrower, such
Lenders (or financial institutions) and the Administrative Agent shall enter
into an agreement (each such agreement being herein called an “Incremental
Loan Amendment”) in form and substance satisfactory to the Administrative
Agent.  The Incremental Loans to be made
pursuant to any Incremental Loan Amendment between the Borrower and one or more
Lenders (including any such new Lenders) in response to any such request by the
Borrower shall be deemed to be a separate “Series” of Incremental Loans
for all purposes of this Agreement. 
Nothing contained in this Agreement shall be construed to obligate any
Lender to provide any Incremental Loan Commitment or to 


 


31





















 


obligate the Borrower to request an Incremental Loan Commitment from
any Lender.  Incremental Loans will share
in the Collateral under the Security Documents and the guarantees under the
Guarantee Agreements to the same extent as each other Loan.


 


Anything
herein to the contrary notwithstanding, the following additional provisions
shall be applicable to Incremental Loans:


 


(i)                                     the aggregate number of separate Series of
Incremental Loans pursuant to all such requests hereunder shall not exceed
five, and the minimum aggregate principal amount of Incremental Loan
Commitments of any Series entered into pursuant to any single such request
(and, accordingly, the minimum aggregate principal amount of Incremental Loans
of such Series) shall be at least equal to $1,000,000;


 


(ii)                                  the aggregate principal amount of all
Incremental Loan Commitments and all outstanding Series of Incremental Loans
(including any increase in Term Loans as provided in clause (v) below) shall
not exceed $100,000,000 (and once such limit is reached, no further Incremental
Loan Commitments may be established hereunder notwithstanding that the
aggregate principal amount of outstanding Incremental Loans shall have
subsequently been reduced below such limit); 


 


(iii)                               the maturity date for the Incremental Loans
of any Series as specified in the Incremental Loan Amendment for such Series
shall not be earlier than the Term Maturity Date;


 


(iv)                              no scheduled payments or repayments of
principal of the Incremental Loans of any Series shall be required prior to the
Term Maturity Date (but Incremental Loans shall be entitled to participate, to
the extent provided in Section 2.11, in voluntary and mandatory prepayments on
the same basis as existing Term Loans);


 


(v)                                 any Series of Incremental Loans may be
effected through an increase in the Term Loans, in which case (w) any
Incremental Loan Lender not already a Term Lender hereunder shall become a Term
Lender, (x) anything in Section 2.18(c) to the contrary notwithstanding, the
initial Term Loans made under the respective Incremental Loan Amendment shall
be made solely by the Incremental Loan Lenders executing such Incremental Loan
Amendment (but thereafter the provisions of Section 2.18(c) shall be
applicable), (y) the initial Term Loans made under such Incremental Loan
Amendment shall be either ABR Loans or Eurodollar Loans with an Interest Period
ending on the last day of the earliest expiring then-outstanding Interest
Period for Term Loans (so long as the same is at least one month after the date
such Incremental Loans are made) and (z) as promptly as practicable following
the making of such Incremental Loans (but in any event not later than the last
day of such earliest-expiring then-outstanding Interest Period for Term Loans),
such Incremental Loans shall be coordinated with all other Term Loans so that
all outstanding Term Loans (including the portion thereof represented by
Incremental Loans) of each Type are allocated ratably among the Term Lenders
(including any Incremental Loan Lenders that have become Term Lenders) as
required by Section 2.18(c); and


 


32





















 


(vi)                              the Applicable Rate with respect to Terms
Loans (including any Incremental Loans deemed an increase to the Term Loans)
that are in existence on the date of each request for an Incremental Loan
pursuant to this Section 2.01(c) may be increased pursuant to mark-to-market
procedures set forth at the end of the definition of Applicable Rate.


 


Following
the acceptance by the Borrower of the offers made by any one or more Lenders to
make any Series of Incremental Loans pursuant to the foregoing provisions of
this paragraph (c), each Incremental Loan Lender in respect of such Series of
Incremental Loans severally agrees, subject to the terms and conditions set
forth herein, to make such Incremental Loans to the Borrower during the period
from and including the date of such acceptance to and including the commitment
termination date specified in the Incremental Loan Amendment entered into with
respect to such Series in an aggregate principal amount up to but not exceeding
the amount of the Incremental Loan Commitment of such Incremental Loan Lender
in respect of such Series as in effect from time to time.  Thereafter, subject to the terms and
conditions of this Agreement, the Borrower may convert Incremental Loans of
such Series of one Type into Incremental Loans of such Series of another Type
(as provided in Section 2.07) or continue Incremental Loans of such Series of
one Type as Incremental Loans of such Series of the same Type (as provided in
Section 2.07).  Incremental Loans of any
Series that are prepaid may not be reborrowed as Incremental Loans of the same
Series.


 


Proceeds
of Incremental Loans shall be available for any use permitted under the
applicable provisions of Section 5.11.


 


Section 2.02  Loans and Borrowings.


 


(a)                                  Obligations
of Lenders.  Each Loan of a
particular Class (and, in the case of Incremental Loans, of a particular
Series) (other than a Swingline Loan) shall be made as part of a Borrowing
consisting of Loans of such Class (and, if applicable, of such Series) made by
the Lenders ratably in accordance with their respective Commitments of such
Class (and, if applicable, of such Series). 
The failure of any Lender to make any Loan required to be made by it
shall not relieve any other Lender of its obligations hereunder, provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.


 


(b)                                 Type
of Loans.  Subject to Section
2.14, each Revolving Loan Borrowing and each Term Loan Borrowing shall be
comprised entirely of ABR Loans or of Eurodollar Loans, in each case as the
Borrower may request in accordance herewith. 
Each Swingline Loan shall be an ABR Loan.  Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan, provided that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.


 


(c)                                  Minimum
Amounts; Limitation on Number of Borrowings.  At the commencement of each Interest Period
for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $1,000,000 and not less than $2,000,000.  Each Revolving Borrowing shall be in an
aggregate amount that is an integral multiple of 


 


33





















 


$500,000 and not less than $1,000,000; provided that each
Eurodollar Revolving Borrowing shall be subject to the provisions of the
immediately preceding sentence.  Each
Swingline Loan shall be in an amount that is an integral multiple of $100,000
and not less than $200,000.  Borrowings
of more than one Type may be outstanding at the same time, provided that
there shall not at any time be more than a total of fifteen Eurodollar
Borrowings outstanding.


 


(d)                                 Limitations
on Interest Periods. 
Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Eurodollar Borrowing if the Interest Period requested with respect thereto
would end after the Term Maturity Date or the Revolving Credit Maturity Date,
as applicable.  In addition, the Borrower
shall not be entitled to request, or to elect to convert or continue, any Loan
into a Eurodollar Borrowing until the date one week after the Closing Date.


 


Section 2.03  Requests for Borrowings.  To request a Revolving Loan Borrowing or a
Term Loan Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
12:00 noon, New York City time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon,
New York City time, one Business Day before the date of the proposed Borrowing,
provided that any such notice of a Revolving Loan Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.05(e) may
be given not later than 12:00 noon, New York City time, on the date of the
proposed Borrowing.  Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy (or transmit by electronic communication, if arrangements for
doing so have been approved by the Administrative Agent) to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower.  Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:


 


(i)                                     whether the requested Borrowing is to be a
Revolving Loan Borrowing, a Term Loan Borrowing or an Incremental Loan
Borrowing (including, if applicable, the respective Series of Incremental Loans
to which such Borrowing relates);


 


(ii)                                  the aggregate amount of such Borrowing;


 


(iii)                               the date of such Borrowing, which shall be a
Business Day;


 


(iv)                              whether such Borrowing is to be a Eurodollar
Borrowing or ABR Borrowing;


 


(v)                                 in the case of a Eurodollar Borrowing, the
initial Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term “Interest Period”; and


 


(vi)                              the location and number of the Borrower’s
account to which funds are to be disbursed, which shall comply with the
requirements of Section 2.06.


 


If no
election as to the Type of Borrowing is specified for a Revolving Loan, a Term
Loan or an Incremental Loan, then the requested Borrowing shall be an ABR
Borrowing.  


 


34





















 


If no Interest Period is specified with respect to any requested
Eurodollar Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. 
Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the
requested Borrowing.  Notwithstanding the
foregoing, the Types and (if applicable) durations of Interest Periods for the
initial Borrowings hereunder shall be as specified in the Borrowing Request
delivered pursuant to Section 4.01(q).


 


Section 2.04  Swingline Loans.


 


(a)                                  Subject
to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to the Borrower from time to time during the Revolving
Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding Swingline
Loans exceeding $10,000,000 or (ii) the sum of the total Revolving Exposures
exceeding the total Revolving Commitments. 
Within the foregoing limits and subject to the terms and conditions set
forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans, provided
that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan.


 


(b)                                 To
request a Swingline Loan, the Borrower shall notify the Administrative Agent of
such request by telephone (confirmed by telecopy (or by electronic
communication, if arrangements for doing so have been approved by the
Administrative Agent)), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan.  Each
such notice shall be irrevocable and shall specify the requested date (which
shall be a Business Day) and amount of the requested Swingline Loan.  The Administrative Agent will promptly advise
the Swingline Lender of any such notice received from the Borrower.  The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as provided
in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan.


 


(c)                                  The
Swingline Lender may by written notice given to the Administrative Agent not
later than 12:00 noon, New York City time, on any Business Day require the
Revolving Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans outstanding. 
Such notice shall specify the aggregate amount of Swingline Loans in
which Revolving Lenders will participate. 
Promptly upon receipt of such notice, the Administrative Agent will give
notice thereof to each Revolving Lender, specifying in such notice such Lender’s
Applicable Percentage of such Swingline Loan or Swingline Loans.  Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to the
Administrative Agent, for the account of the Swingline Lender, such Lender’s
Applicable Percentage of such Swingline Loan or Swingline Loans.  Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever.  Each Revolving Lender 


 


35





















 


shall comply with its obligation under this paragraph by wire transfer
of immediately available funds, in the same manner as provided in Section 2.06
with respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so
received by it from the Revolving Lenders. 
The Administrative Agent shall notify the Borrower of any participations
in any Swingline Loan acquired pursuant to this paragraph, and thereafter
payments in respect of such Swingline Loan shall be made to the Administrative
Agent and not to the Swingline Lender. 
Any amounts received by the Swingline Lender from the Borrower (or other
party on behalf of the Borrower) in respect of a Swingline Loan after receipt
by the Swingline Lender of the proceeds of a sale of participations therein
shall be promptly remitted to the Administrative Agent; any such amounts
received by the Administrative Agent shall be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made their
payments pursuant to this paragraph and to the Swingline Lender, as their
interests may appear.  The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.


 


Section 2.05  Letters of Credit.


 


(a)                                  General.  Subject to the terms and conditions set forth
herein, the Borrower may request the issuance of standby and, if available from
the LC Issuer, commercial Letters of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and any LC Issuer, at any
time and from time to time during the Revolving Availability Period.  In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, an LC Issuer relating to any Letter
of Credit, the terms and conditions of this Agreement shall control.


 


(b)                                 Notice
of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of a Letter of Credit
(or the amendment, renewal or extension of an outstanding Letter of Credit),
the Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
respective LC Issuer) to an LC Issuer selected by it and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit.  If requested by the
respective LC Issuer, the Borrower also shall submit a letter of credit
application on such LC Issuer’s standard form in connection with any request
for a Letter of Credit.  A Letter of
Credit shall be issued, amended, renewed or extended only if (and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the total Revolving Exposure
shall not exceed the total Revolving Commitments and (ii) the total LC Exposure
shall not exceed $25,000,000.


 


36





















 


(c)                                  Expiration
Date.  Each Letter of
Credit shall expire at or prior to the close of business on the earlier of (1)
the date one year after the date of the issuance of such Letter of Credit (or,
in the case of any renewal or extension thereof, one year after such renewal or
extension) and (2) the date that is three Business Days prior to the Revolving
Credit Maturity Date, provided any Letter of Credit with a one-year term
may provide for the renewal thereof for additional one-year periods (which
shall in no event extend beyond the date three Business Days prior to the
Revolving Credit Maturity Date).


 


(d)                                 Participations.  By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the respective LC Issuer or the Lenders, such LC
Issuer hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from such LC Issuer, a participation in such Letter of Credit equal to
such Lender’s Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit.  In
consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the respective LC Issuer, such Lender’s Applicable Percentage of
each LC Disbursement made by such LC Issuer and not reimbursed by the Borrower
on the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any
reason.  Each Revolving Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Revolving
Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever.


 


(e)                                  Reimbursement.  If an LC Issuer shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 3:00 p.m., New York City time, on the date
that such LC Disbursement is made (provided that if the Borrower is not
notified prior to 11:00 a.m. New York time of such disbursement on the date
thereof, the Borrower may make such reimbursements not later than 3:00 p.m. on
the Business Day following such LC Disbursement provided that interest
thereon is paid through such Business Day), provided that the Borrower
may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed with a Revolving
Loan Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, the Borrower’s obligation to make such payment shall be discharged
and replaced by the resulting Revolving Loan Borrowing or Swingline Loan.  If the Borrower fails to make such payment
when due, the Administrative Agent shall notify each Revolving Lender of the
applicable LC Disbursement, the payment then due from the Borrower in respect
thereof and such Lender’s Applicable Percentage thereof.  Promptly following receipt of such notice,
each Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis  mutandis, to the payment obligations of
the Revolving Lenders), and the Administrative Agent shall promptly pay to such
LC Issuer the amounts so received by it from the Revolving Lenders.  Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to such LC
Issuer or, to the extent that 


 


37





















 


Revolving Lenders have made payments pursuant to this paragraph to
reimburse such LC Issuer, then to such Lenders and such LC Issuer as their
interests may appear.  Any payment made
by a Revolving Lender pursuant to this paragraph to reimburse any LC Issuer for
any LC Disbursement (other than the funding of Revolving Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not relieve
the Borrower of its obligation to reimburse such LC Disbursement (other than
with respect to the timing of such reimbursement obligation as set forth in
this paragraph).


 


(f)                                    Obligations
Absolute.  The Borrower’s
obligation to reimburse LC Disbursements as provided in paragraph (e) of this
Section and the Revolving Lenders obligations under paragraph (d) of this
Section shall each be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever and irrespective of (1) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (2) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (3) payment by the
respective LC Issuer under a Letter of Credit against presentation of a draft
or other document that does not comply with the terms of such Letter of Credit,
or (4) any other event or circumstance whatsoever, whether or not similar to
any of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. 
Neither the Administrative Agent, the Lenders nor the LC Issuers, nor
any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the respective LC Issuer, provided that the foregoing
shall not be construed to excuse an LC Issuer from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Borrower to the extent permitted
by applicable law) suffered by the Borrower that are caused by such LC Issuer’s
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in
the absence of gross negligence or willful misconduct on the part of an LC
Issuer (as finally determined by a court of competent jurisdiction), such LC
Issuer shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented that appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an LC Issuer may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.


 


(g)                                 Disbursement
Procedures.  The respective LC
Issuer shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of Credit.  Such LC Issuer shall promptly notify the
Administrative 


 


38





















 


Agent and the Borrower by telephone (confirmed by telecopy) of such
demand for payment and whether such LC Issuer has made or will make an LC
Disbursement thereunder, provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to
reimburse such LC Issuer and the Revolving Lenders with respect to any such LC
Disbursement (other than with respect to the timing of such reimbursement
obligation as set forth in paragraph (e) of this Section).


 


(h)                                 Interim
Interest.  If the respective
LC Issuer shall make any LC Disbursement, then, unless the Borrower shall
reimburse such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that
the Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to Revolving Loans, provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. 
Interest accrued pursuant to this paragraph shall be for the account of
such LC Issuer, except that interest accrued on and after the date of payment
by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse
such LC Issuer shall be for the account of such Lender to the extent of such
payment.


 


(i)                                     Replacement
of an LC Issuer.  Any LC Issuer may
be replaced and additional LC Issuers may be added at any time by written
agreement among the Borrower, the Administrative Agent, the replaced or
existing LC Issuer and the successor or additional LC Issuer.  The Administrative Agent shall notify the
Revolving Lenders of any such replacement of such LC Issuer or the appointment
of additional LC Issuers.  At the time
any such replacement shall become effective, the Borrower shall pay all unpaid
fees accrued for the account of the replaced LC Issuer pursuant to Section
2.12(b).  From and after the effective
date of any such replacement, (1) the successor LC Issuer shall have all the
rights and obligations of the replaced LC Issuer under this Agreement with
respect to Letters of Credit to be issued thereafter and (2) references herein
to the term “LC Issuer” shall be deemed to refer to such successor or to any
previous LC Issuer, or to such successor and all previous LC Issuers, as the
context shall require.  After the
replacement of an LC Issuer hereunder, the replaced LC Issuer shall remain a
party hereto and shall continue to have all the rights and obligations of an LC
Issuer under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional
Letters of Credit.


 


(j)                                     Cash
Collateralization.  If any Event of
Default shall occur and be continuing, on the Business Day that the Borrower
receives notice from the Administrative Agent or the Required Lenders (or, if
the maturity of the Loans has been accelerated, Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent (any such account being herein called a “Letter of
Credit Collateral Account”), an amount in cash equal to the total LC
Exposure as of such date plus any accrued and unpaid interest thereon, provided
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (h) or (i) of Article VII.


 


39





















 


Each
deposit into the Letter of Credit Collateral Account shall be held by the
Administrative Agent as collateral, for the payment and performance of the
obligations of the Borrower under this Agreement.  The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account.  Other than any interest earned
on the investment of such deposits, which investments shall be Permitted
Investments, made at the option and sole discretion of the Administrative Agent
and at the Borrower’s risk and expense, such deposits shall not bear
interest.  Interest or profits, if any,
on such investments shall accumulate in such account and shall be the Borrower’s
property held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement as
described above.  Moneys in such account
shall be applied by the Administrative Agent to reimburse the respective LC
Issuer for LC Disbursements for which it has not been reimbursed or subject to
the consent of Revolving Lenders with LC Exposure representing greater than 50%
of the total LC Exposure, applied to satisfy other obligations of the Borrower
under this Agreement.  If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount plus any accrued interest
or realized profits on account of such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.


 


Section 2.06  Funding of Borrowings.


 


(a)                                  Funding
by Lenders.  Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds not later than 11:00 a.m., New
York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided
that Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in
like funds, to an account of the Borrower designated by the Borrower in the
applicable Borrowing Request, provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)
shall be remitted by the Administrative Agent to the LC Issuer.


 


(b)                                 Presumption
by Administrative Agent. 
Unless the Administrative Agent shall have received notice from a Lender
prior to the proposed date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender’s share of such Borrowing,
the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with paragraph (a) of this Section and
may, in its sole discretion and in reliance upon such assumption, make
available to the Borrower a corresponding amount.  In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans.  If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan
included in such Borrowing.


 


40





















 


(c)                                  Nothing
in this Section 2.06 shall be deemed to relieve any Lender from its obligation
to fulfill its Commitments hereunder or to prejudice any rights that the
Borrower may have against any Lender as a result of any default by any such
Lender hereunder (it being understood, however, that no Lender shall be
responsible for the failure of any other Lender to fulfill its Commitments
hereunder).


 


Section 2.07  Interest Elections.


 


(a)                                  Elections
by the Borrower.  Each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request,
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. 
Thereafter, the Borrower may elect to convert a Borrowing of Loans of
any Class to a different Type of Loans of such Class or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section.  The Borrower may elect different options with
respect to different portions of the affected Borrowing, in which case each
such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.  This
Section shall not apply to Swingline Loans, which may not be converted or
continued as Eurodollar Loans.


 


(b)                                 Notice
of Elections.  To make an election
pursuant to this Section, the Borrower shall notify the Administrative Agent of
such election by telephone (1) in the case of a Eurodollar Borrowing, not later
than 12:00 noon New York City time, three Business Days before the effective
date of the election, or (2) in the case of an ABR Borrowing not later than
12:00 noon New York City time, one Business Day before the effective date of
the election.  Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy (or by electronic communication, if arrangements
for doing so have been approved by the Administrative Agent) to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.


 


(c)                                  Content
of Notices.  Each telephonic and
written Interest Election Request shall specify the following information in
compliance with Section 2.02 and paragraph (f) of this Section:


 


(i)                                     the Borrowing to which such Interest Election
Request applies (including, if applicable, the respective Series of Incremental
Loans to which such Interest Election Request relates) and, if different
options are being elected with respect to different portions thereof, the
portions thereof to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);


 


(ii)                                  the effective date of the election made
pursuant to such Interest Election Request, which shall be a Business Day;


 


(iii)                               whether the resulting Borrowing is to be an
ABR Borrowing or a Eurodollar Borrowing; and


 


41





















 


(iv)                              if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition of the
term “Interest Period.”


 


If any
such Interest Election Request requests a Eurodollar Borrowing but does not
specify an Interest Period, then the Borrower shall be deemed to have selected
an Interest Period of one month’s duration.


 


(d)                                 Notices
by Administrative Agent to Lenders.  Promptly following receipt of an Interest
Election Request, the Administrative Agent shall advise each affected Lender of
the details thereof and of such Lender’s portion of each resulting Borrowing.


 


(e)                                  Certain
Presumptions of Elections. 
If the Borrower fails to deliver a timely Interest Election Request with
respect to a Eurodollar Borrowing, which delivery is prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. 
Notwithstanding any contrary provision hereof, if an Event of Default
has occurred and is continuing and the Administrative Agent, at the request of
the Required Lenders, so notifies the Borrower, then, so long as an Event of
Default is continuing no outstanding Revolving Loan Borrowing or Term Loan
Borrowing, as applicable, may be converted to or continued as a Eurodollar
Borrowing and, unless repaid, each Eurodollar Borrowing shall be converted to
an ABR Borrowing at the end of the Interest Period applicable thereto.


 


(f)                                    A
Borrowing of any Class may not be converted to or continued as a Eurodollar
Borrowing if after giving effect thereto (i) the Interest Period therefor would
commence before and end after a date on which any principal of the Loans of
such Class is scheduled to be repaid and (ii) the sum of the aggregate
principal amount of outstanding Eurodollar Borrowings of such Class with
Interest Periods ending on or prior to such scheduled repayment date plus the
aggregate principal amount of outstanding ABR Borrowings of such Class would be
less than the aggregate principal amount of Loans of such Class required to be
repaid on such scheduled repayment date.


 


Section 2.08  Termination and Reduction of Revolving
Commitments.


 


(a)                                  Scheduled
Termination.  Unless previously
terminated, (i) the Term Loan Commitments shall terminate at 5:00 p.m., New
York City time, on the Closing Date, (ii) if not sooner terminated, the
Revolving Commitments shall terminate on the Revolving Credit Maturity Date and
(iii) each Incremental Loan Commitment of any Series shall terminate on the
applicable commitment termination date for such Series specified in the
Incremental Loan Amendment for such Series.


 


(b)                                 Voluntary
Termination or Reduction. 
The Borrower may at any time terminate, or from time to time reduce, the
Revolving Commitments, provided that (i) each reduction of the Revolving
Commitments shall be in an amount that is an integral multiple of $1,000,000
and not less than $2,000,000 and (ii) the Borrower shall not terminate or
reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving 


 


42





















 


Loans in accordance with Section 2.11, the sum of the Revolving
Exposures would exceed the total Revolving Commitments.


 


(c)                                  Notice
of Termination or Reduction. 
The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Revolving Commitments under paragraph (b) of this Section
at least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof.  Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof.  Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable. 
Any termination or reduction of the Revolving Commitments shall be
permanent.  Each reduction of the
Revolving Commitments shall be made ratably among the Revolving Lenders in
accordance with their respective Revolving Commitments.


 


Section 2.09  Evidence of Debt.


 


(a)                                  Maintenance
of Records by Lenders. 
Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.


 


(b)                                 Maintenance
of Records by Administrative Agent.  The Administrative Agent shall maintain
accounts in which it shall record (i) the amount of each Loan made hereunder,
the Class and Type thereof (and, in the case of Incremental Loans, the
respective Series thereof) and the Interest Period applicable thereto, (ii) the
amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of the
Lenders and each Lender’s share thereof.


 


(c)                                  Presumptions
of Records.  The entries made in
the accounts maintained pursuant to paragraph (a) or (b) of this Section shall
be prima  facie evidence of the existence and amounts of the
obligations recorded therein, provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans in
accordance with the terms of this Agreement.


 


(d)                                 Promissory
Notes.  Any Lender may
request that Loans of any Class made by it be evidenced by a promissory
note.  In such event, the Borrower shall
prepare, execute and deliver to such Lender a promissory note (each a “Note”)
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) substantially in the form of Exhibit H
hereto.  Thereafter, the Loans evidenced
by such Note and interest thereon shall at all times (including after assignment
pursuant to Section 9.04) be represented by one or more Notes in such form
payable to the order of the payee named therein (or, if such Note is a
registered note, to such payee and its registered assigns).


 


Section 2.10  Repayment of Loans.


 


(a)                                  Revolving
Loans and Swingline Loans. 
The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each 


 


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Revolving Lender the principal amount of the Revolving Loans on the
Revolving Credit Maturity Date and (ii) to the Swingline Lender the then unpaid
principal amount of each Swingline Loan on the earlier of the Revolving Credit
Maturity Date and the first date after such Swingline Loan is made that is the
15th or last day of a calendar month and is at least five Business Days after
such Swingline Loan is made, provided that on each date that a Revolving
Loan is made, the Borrower shall repay all Swingline Loans then outstanding.


 


(b)                                 Term
Loans and Incremental Loans. 
The Borrower hereby unconditionally promises to pay to the
Administrative Agent (i) for the account of each Term Lender the principal
amount of the Term Loans on the Term Maturity Date and (ii) for the
account of each Incremental Loan Lender of any Series the principal amount of
the Incremental Loans of such Series held by such Lender on the maturity date
therefor set forth in the respective Incremental Loan Amendment for such
Series.


 


Section 2.11  Prepayment of Loans.


 


(a)                                  Voluntary
Prepayments.  The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part (without premium or penalty, except as provided in Section
2.16), subject to the requirements of this Section.


 


(b)                                 Mandatory
Prepayment upon Prepayment Events.  In the event that and on each occasion on
which any Net Proceeds are received by or on behalf of the Parent, the Borrower
or any Subsidiary in respect of any Prepayment Event, the Borrower shall,
within three Business Days after such Net Proceeds are received (or such later
period after which the receipt thereof constitutes a prepayment event), prepay
Loans in an aggregate amount equal to such Net Proceeds, in accordance with
Section 2.11(h), provided that,


 


(i)                                     so long as no Event of Default has occurred
and is continuing, in the case of any event described in clause (a) of the
definition of the term Prepayment Event, no mandatory prepayments in respect of
any such event shall be required pursuant to this Section 2.11(b) (A) in any
single fiscal year until the date on which the Net Proceeds required to be
applied as mandatory prepayments in the absence of this proviso equals or
exceeds $5,000,000 for such fiscal year and (B) for any Net Proceeds received
from the sale, transfer of other disposition of any property or asset of any
Loan Party with a fair market value not to exceed $15,000,000 in the aggregate
and which does not result in a reduction of Adjusted EBITDA by more than
$1,000,000 after giving pro forma effect thereto; provided that the
Borrower designate that such Net Proceeds are being used pursuant to this
clause (B) and provide a calculation thereof demonstrating compliance with this
clause (B) in the next quarterly Compliance Certificate delivered to the
Administrative Agent under Section 5.01; and


 


(ii)                                  in the case of any event described in clause
(c) of the definition of the term Prepayment Event, if the Borrower shall
deliver to the Administrative Agent a certificate of a Financial Officer to the
effect that the Borrower and the Subsidiaries intend to apply the Net Proceeds from
such event within 60 days after receipt of such Net Proceeds as permitted in
the definition of Permitted Additional Indebtedness, and certifying that no
Default has occurred and is continuing, then no prepayment shall be required
pursuant to 


 


44





















 


this paragraph in respect of
such event except to the extent of any Net Proceeds therefrom that have not
been so applied by the end of such 60-day period, at which time a prepayment
shall be required in an amount equal to the Net Proceeds that have not been so
applied.


 


In addition, the Borrower shall immediately prepay the
Loans in accordance with Section 2.11(h) by an amount equal to any amount
that would otherwise constitute amounts that are required by the terms of the
documents governing or evidencing any Permitted Additional Indebtedness to be
applied to the prepayment of such Indebtedness.


 


(c)                                  Mandatory
Prepayment upon Dividend Suspension Period.  The Borrower shall prepay the Loans in
accordance with Section 2.11(h) within 60 days after the end of each
fiscal quarter of the Borrower ending during any Dividend Suspension Period, in
an aggregate amount equal to 50% of any increase in Cumulative Distributable
Cash of the Borrower and the Subsidiaries during such fiscal quarter.


 


(d)                                 Mandatory
Prepayment of Excess Cash Flow. 
The Borrower shall prepay the Loans in accordance with
Section 2.11(h) within 120 days after the end of each fiscal year of the
Borrower commencing with the fiscal year ending on December 31, 2005, in an
aggregate amount equal to the sum of the Applicable Prepayment Percentage of
(i) any increase in Cumulative Distributable Cash of the Borrower and the
Subsidiaries (x) solely for the fiscal year ending on December 31, 2005,
during the period beginning on April 1, 2005 and ending on December 31, 2005
and (y) thereafter, during such fiscal year (it being understood that the
determination of the amount referred to in clause (b) of the definition of “Cumulative
Distributable Cash” in Section 1.01 shall not be deemed to be an increase in
Cumulative Distributable Cash and shall be disregarded for purposes hereof) minus
(ii) the aggregate amount of prepayments (if any) of Loans made during such
period or such fiscal year, as applicable, pursuant to paragraph (c) above.


 


(e)                                  Mandatory
Prepayment With Respect to Senior Unsecured Notes and Senior Subordinated Notes.  In the event that (i) the amount of
funds placed in the Senior Unsecured Notes Account are not used to acquire
Senior Unsecured Notes in a principal amount equal to $59,350,000 plus any
accrued interest, consent fees, tender offer premiums and account maintenance
fees, the Borrower will ratably repay the Term Loans in an amount equal to the
funds remaining in the Senior Unsecured Notes Account no later than 90 days
after the Closing Date, (ii) the Senior Unsecured Notes are not repaid prior to
March 31, 2011, the Borrower shall prepay the Term Loans and Incremental Loans
in full in cash on March 31, 2011, and (iii) the amount of funds placed in the
Senior Subordinated Notes Account are not used to acquire all of the
outstanding Senior Subordinated Notes plus any accrued interest, tender offer
or call premiums and account maintenance fees, the Borrower will ratably repay
the Term Loans in an amount equal to the funds remaining in the Senior
Subordinated Notes Account no later than 90 days after the Closing Date. All
amounts remaining in the Senior Unsecured Notes Account after payment of all
amounts therein required to be applied pursuant to the foregoing clause (i) of
this Section 2.11(e) may be withdrawn by the Borrower and all amounts remaining
in the Senior Subordinated Notes account after payment of all amounts required
to be applied pursuant to the foregoing clause (iii) of this Section 2.11(e)
may be withdrawn by the Borrower.


 


45





















 


(f)                                    Mandatory
Prepayment of Revolving Loans. 
In the event that and on each occasion on which the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings or Swingline Loans in an aggregate amount equal to such
excess.


 


(g)                                 If
Section 2.01 of this Agreement or the definition of “Applicable Rate” is
amended or modified in the first year following the Closing Date in any manner
that decreases the interest rate applicable to the Term Loans, the Borrower
shall pay a premium to the Administrative Agent for the ratable benefit of the
Lenders of the Term Loans equal to 1.00% of the principal amount of the Term Loans
so repriced.


 


(h)                                 Notices
of Prepayment, Etc.  The Borrower shall
notify the Administrative Agent (and, in the case of a prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy (or
by electronic communication, if arrangements for doing so have been approved by
the Administrative Agent and the Swingline Lender, as applicable)) of any
voluntary prepayment hereunder (i) in the case of prepayment of a Eurodollar
Borrowing, not later than 12:00 noon, New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR
Borrowing, not later than 12:00 noon, New York City time, one Business Day
before the date of prepayment or (iii) in the case of prepayment of a Swingline
Loan, not later than 1:00 p.m., New York City time, on the date of
prepayment.  The Borrower shall notify
the Administrative Agent by telephone (confirmed by telecopy (or by electronic
communication, if arrangements for doing so have been approved by the
Administrative Agent)) of any mandatory prepayment hereunder not less than
three Business Days before the date of prepayment.  Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment.  Promptly following receipt of any such notice
(other than a notice relating solely to Swingline Loans), the Administrative
Agent shall advise the Lenders of the contents thereof.  Each partial prepayment of any Borrowing
shall be in an amount that would be permitted in the case of an advance of a
Borrowing of the same Type as provided in Section 2.02, except as necessary to
apply fully the required amount of a mandatory prepayment.  Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing.  Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.13.


 


(i)                                     Application
of Mandatory Prepayments. 
(i)  Any prepayment of Loans
required to be made in any amount (the “Required Prepayment Amount”)
pursuant to paragraph (b) or (c) of Section 2.11 shall be applied as follows:


 


First,
there shall be applied to the Term Loans and Incremental Loans, ratably in
accordance with the respective principal amounts thereof, a portion of the
Required Prepayment Amount equal to the product of (i) the Required Prepayment
Amount multiplied by (ii) a fraction, the numerator of which is the Aggregate
Term Exposure and aggregate outstanding principal balance of Incremental Loans
on such date and the denominator of which is the Aggregate Credit Exposure; and


 


Second,
the balance of the Required Prepayment Amount shall be applied to the Revolving
Loans, the unpaid LC Disbursements and the Swingline Exposure, ratably in 


 


46





















 


accordance with
the respective amounts thereof, except that (i) until the Revolving Loans
and Swingline Loans have been paid in full, the portion thereof that would
otherwise be applied to the unpaid LC Disbursements shall instead be applied
ratably to Revolving Loans and Swingline Loans and (ii) any application of
any Required Prepayment Amount to Revolving Loans or unpaid LC Disbursements or
Swingline Exposure shall be without reduction of Revolving Commitments (unless
otherwise elected by the Borrower in a notice delivered at the time of such
prepayment pursuant to Section 2.08).


 


(ii)                                  Any prepayment of Loans required to be made pursuant
to paragraph (d) of Section 2.11 shall be applied first, to the
Revolving Loans, the unpaid LC Disbursements and the Swingline Exposure in
accordance with the provisions of clause (i) above with respect to Revolving
Loans, the unpaid LC Disbursements and the Swingline Exposure, and second,
to the Term Loans and Incremental Loans in accordance with clause (i) above
with respect to Term Loans and Incremental Loans.


 


Prepayments
of Revolving Loans, Term Loans and Incremental Loans shall be applied first
to ABR Loans and second to Eurodollar Loans (applied to Eurodollar Loans
with Interest Periods in the order in which the respective Interest Periods
therefor shall end).


 


Each
prepayment of Loans pursuant to this paragraph (h) (other than prepayments of
Revolving Loans that are ABR Loans prior to the end of the Revolving
Availability Period) shall be accompanied by accrued interest on the principal
amount paid to but excluding the date of payment and any amounts payable under
Section 2.16 as a result of such prepayment.


 


Section 2.12  Fees.


 


(a)                                  Commitment
Fee.  The Borrower agrees to pay to the
Administrative Agent, for account of the Revolving Lenders, a commitment fee,
which shall be due and payable quarterly in arrears on each Interest Payment
Date for Revolving Loans, calculated at the rate of 0.375% per annum on the
average daily unused portion of the Revolving Commitments (for which purposes
any outstanding Letters of Credit shall be deemed to be usage of the Revolving
Commitments and the Swingline Exposure of such Lender shall be disregarded).


 


(b)                                 Participation
Fee.  The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Revolving Lender a participation
fee with respect to its participations in Letters of Credit, which shall accrue
at a rate equal to the Applicable Rate for Eurodollar Loans that are Revolving
Loans on the average daily amount of such Lender’s LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Closing Date to but excluding the later of the
date on which such Lender’s Revolving Commitment terminates and the date on
which such Lender ceases to have any LC Exposure, and (ii) to the respective LC
Issuer a fronting fee, which shall accrue at the rate of 0.25% per annum on the
average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Closing Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as such LC Issuer’s standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. 
Participation fees and fronting fees 


 


47





















 


accrued through and including the last day of March, June, September
and December of each year shall be payable on the third Business Day following
such last day, commencing on the first such date to occur after the Closing
Date, provided that all such fees shall be payable on the date on which
the Revolving Commitments terminate and any such fees accruing after the date
on which the Revolving Commitments terminate shall be payable on demand.  Any other fees payable to any LC Issuer
pursuant to this paragraph shall be payable within 10 days after demand.  All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).


 


(c)                                  Agency
Fee.  The Borrower agrees to pay to the
Administrative Agent, for its own account, fees payable in the amounts and at
the times separately agreed upon between the Borrower and the Administrative
Agent, including any fees provided for therein that are payable upon the
syndication of any Loans.


 


(d)                                 Payments
of Fees.  All fees payable
hereunder shall be paid on the dates due, in immediately available funds, to
the Administrative Agent (or to the respective LC Issuer, in the case of fees
payable to it) for distribution, to the Lenders entitled thereto.  Fees paid shall not be refundable under any
circumstances.


 


Section 2.13  Interest.


 


(a)                                  ABR Loans.  (i) All Swingline Loans and (ii) the
Revolving Loans, Term Loans or Incremental Loans comprising each ABR Borrowing,
shall bear interest at the Alternate Base Rate plus the Applicable Rate.


 


(b)                                 Eurodollar
Loans.  The Revolving
Loans, Term Loans or Incremental Loans comprising each Eurodollar Borrowing
shall bear interest at the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate.


 


(c)                                  Post
Default Interest.  Notwithstanding the
foregoing, if any Event of Default shall have occurred and be continuing,
including if any principal of or interest on any Loan or any fee or other
amount payable by the Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, all overdue amounts hereunder
shall bear interest, after as well as before judgment, at a rate per annum
equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other overdue amount, 2% plus
the rate applicable to ABR Loans as provided in paragraph (c) of this Section.


 


(d)                                 Interest
Payment Dates.  Accrued interest on
each Loan shall be payable in arrears on each Interest Payment Date for such
Loan and, in the case of Revolving Loans, upon termination of the Revolving
Commitments, provided that (i) interest accrued pursuant to paragraph
(c) of this Section shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than prepayments of Revolving Loans
that are ABR Loans prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of 


 


48





















 


any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.


 


(e)                                  Basis
of Computation.  All interest
hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis
of a year of 365 days (or 366 days in a leap year) and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).  Each applicable Alternate Base
Rate or Adjusted LIBO Rate shall be determined by the Administrative Agent, and
such determination shall be conclusive absent manifest error.


 


Section 2.14  Alternate Rate of Interest.


 


Eurodollar
Borrowings.  If prior
to the commencement of any Interest Period for a Eurodollar Borrowing:


 


(a)                                  the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate for such Interest Period; or


 


(b)                                 the
Administrative Agent is advised by the Required Lenders that dollar deposits in
the London interbank market are not available in the amount of such Eurodollar
Borrowing for such Interest Period;


 


then the Administrative Agent shall give notice
thereof to the Borrower and the affected Lenders by telephone or telecopy as
promptly as practicable thereafter and, until the Administrative Agent notifies
the Borrower and such Lenders that the circumstances giving rise to such notice
no longer exist, (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing
Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.


 


Section 2.15  Increased Costs.


 


(a)                                  Change
in Law.  If any Change in
Law shall:


 


(i)                                     impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Lender or any LC Issuer
(except any such requirement reflected in the Adjusted LIBO Rate); or


 


(ii)                                  impose on any Lender or any LC Issuer or the
London interbank market any other material condition affecting this Agreement
or Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;


 


and the result of any of the foregoing shall be to
increase the cost to such Lender of making or maintaining any Eurodollar Loan
(or of maintaining its obligation to make any such Eurodollar Loan) or to
increase the cost to such Lender or such LC Issuer of participating in, issuing
or 


 


49





















 


maintaining any Letter of Credit or to reduce the
amount of any sum received or receivable by such Lender or such LC Issuer
hereunder (whether of principal, interest or otherwise), in each case by an
amount deemed material by such Lender or LC Issuer, then in accordance with
clause (c) below, the Borrower will pay to such Lender or LC Issuer, as the
case may be, such additional amount or amounts as will compensate such Lender
or LC Issuer, as the case may be, for such additional costs incurred or
reduction suffered.


 


(b)                                 Capital
Requirements.  If any Lender or
any LC Issuer determines that any Change in Law regarding capital requirements
has or would have the effect of reducing the rate of return on such Lender’s or
such LC Issuer’s capital or on the capital of such Lender’s or such LC Issuer’s
holding company, if any, as a consequence of this Agreement or the Loans made
by, or the participation in Letters of Credit held by, such Lender, or the
Letters of Credit issued by such LC Issuer, to a level below that which such
Lender or such LC Issuer or such Lender’s or such LC Issuer’s holding company
could have achieved but for such Change in Law (taking into consideration such
Lender’s or such LC Issuer’s policies and the policies of such Lender’s or such
LC Issuer’s holding company with respect to capital adequacy), in each case by
an amount deemed material by such Lender or such LC Issuer, then in accordance
with clause (c) below, the Borrower will pay to such Lender or such LC Issuer
such additional amount or amounts as will compensate such Lender or such LC
Issuer or such Lender’s or such LC Issuer’s holding company for any such
reduction suffered.


 


(c)                                  Certificates
of Lender.  If any Lender or LC
Issuer becomes entitled to claim any additional amounts pursuant to paragraph
(a) or (b) of this Section, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so
entitled.  A certificate of a Lender or
an LC Issuer setting forth the amount or amounts necessary to compensate such
Lender, such LC Issuer or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section shall be delivered to the Borrower
(with a copy to the Administrative Agent) and shall be conclusive absent
manifest error.  The Borrower shall pay
such Lender or such LC Issuer the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


(d)                                 Delay
in Request for Compensation. 
Failure or delay on the part of any Lender or any LC Issuer to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or such LC Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or an LC Issuer
pursuant to this Section for any increased costs or reductions incurred more
than 180 days prior to the date that such Lender or such LC Issuer notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender’s or such LC Issuer’s intention to claim compensation
therefor; provided, further, that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of retroactive
effect thereof.


 


Section 2.16  Break Funding Payments.  In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to convert, continue or
prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant 


 


50





















 


hereto, or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by
the Borrower pursuant to Section 2.19, then, in any such event, the Borrower
shall compensate each Lender for the loss, cost and expense attributable to
such event.


 


In the
case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Eurodollar Loan had such event not occurred, at the Adjusted LIBO Rate
that would have been applicable to such Eurodollar Loan, for the period from
the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Eurodollar Loan), over
(ii) the amount of interest which would accrue on such principal amount for
such period at the interest rate which such Lender would bid were it to bid, at
the commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market.


 


Section 2.17  Taxes.


 


(a)                                  Payments
Free of Taxes.  Any and all
payments by or on account of any obligation of any Loan Party hereunder or
under any other Loan Document shall be made free and clear of and without
withholding or deduction for any Indemnified Taxes or Other Taxes, provided
that, if any Loan Party shall be required to withhold or deduct any Indemnified
Taxes or Other Taxes from such payments, then (i) the sum payable shall be
increased as necessary so that after making all required withholding and
deductions (including withholdings and deductions applicable to additional sums
payable under this Section) the Administrative Agent, Lender or LC Issuer (as
the case maybe) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Loan Party shall make such deductions
and (iii) such Loan Party shall pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with applicable law.


 


(b)                                 Payment
of Other Taxes by the Loan Parties.  In addition, the Loan Parties shall pay any
Other Taxes to the relevant Governmental Authority in accordance with
applicable law.


 


(c)                                  Indemnification
by the Loan Parties. 
The Loan Parties shall indemnify the Administrative Agent, each Lender
and each LC Issuer, within 20 Business Days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such LC Issuer, as the case may be, on or
with respect to any payment by or on account of any obligation of any Loan
Party hereunder or under any other Loan Document (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto (other than those resulting from the gross
negligence or willful misconduct of such Administrative Agent, such Lender or
such LC Issuer), whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or an
LC Issuer, or by the Administrative 


 


51





















 


Agent on its own behalf or on behalf of a Lender or an LC Issuer, shall
be conclusive absent manifest error.


 


(d)                                 Evidence
of Payments.  As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by any Loan Party to a
Governmental Authority, the Borrower shall deliver to the Administrative Agent
the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.


 


(e)                                  Foreign
Lenders.  (i) Each Lender and
LC Issuer that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code (a “Foreign Lender”) shall deliver
to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an interest
herein), two duly signed completed originals of either IRS Form W-8BEN or any
successor thereto (relating to such Foreign Lender and entitling it to an
exemption from, or reduction of, withholding tax on all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or such other
evidence satisfactory to the Borrower and the Administrative Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of the
Code.  Thereafter and from time to time,
each such Foreign Lender shall (A) promptly submit to the Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
the Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Foreign Lender by the Borrower pursuant to this Agreement, (B)
promptly notify the Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or reduction, and (C) take
such steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Foreign Lender.


 


(ii)                                  Each Foreign Lender, to the extent it does
not act or ceases to act for its own account with respect to any portion of any
sums paid or payable to such Lender under any of the Loan Documents (for
example, in the case of a typical participation by such Lender), shall deliver
to the Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination of
the Administrative Agent (in the reasonable exercise of its discretion), (A)
two duly signed completed copies of the forms or statements required to be
provided by such Lender as set forth above, to establish the portion of any
such sums paid or payable with respect to which such Lender acts for its own
account that is not subject to U.S. withholding tax, and (B) two duly signed
completed originals of IRS Form W-8IMY (or any successor thereto), together
with any information such Lender chooses to transmit with such form, 


 


52





















 


and any other certificate or
statement of exemption required under the Code, to establish that such Lender
is not acting for its own account with respect to a portion of any such sums
payable to such Lender.


 


(iii)                               The Borrower and each Loan Party shall not be
required to pay any additional amount to any Foreign Lender (A) with respect to
any Taxes required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS Form
W-8IMY pursuant to this Section 2.17 or (B) if such Lender shall
have failed to satisfy the foregoing provisions of this Section 2.17(e);
provided that if such Lender shall have satisfied the requirement of
this Section 2.17(e) on the date such Lender became a Lender or
ceased to act for its own account with respect to any payment under any of the
Loan Documents, nothing in this Section 2.17(e) shall relieve the
Borrower or any Loan Party of its obligation to pay any amounts pursuant to Section 2.17
in the event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender or other Person for the account of which
such Lender receives any sums payable under any of the Loan Documents is not
subject to withholding or is subject to withholding at a reduced rate.


 


(iv)                              The Administrative Agent may, without
reduction, withhold any Taxes required to be deducted and withheld from any
payment under any of the Loan Documents with respect to which the Borrower is
not required to pay additional amounts under this Section 2.17(e).


 


(f)                                    Domestic
Lenders.  Upon the request of
the Administrative Agent, each Lender and LC Issuer that is a “United States
person” within the meaning of Section 7701(a)(30) of the Code (a “Domestic
Lender”) shall deliver to the Administrative Agent two duly signed
completed originals of IRS Form W-9.  If
such Lender fails to deliver such forms, then the Administrative Agent may
withhold from any interest payment to such Lender an amount equivalent to the
applicable back-up withholding tax imposed by the Code, without reduction.


 


(g)                                 Indemnification
for Withholding Taxes. 
If any Governmental Authority asserts that the Administrative Agent did
not properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. 
The obligation of the Lenders under this Section shall survive the termination
of the Aggregate Commitments, repayment of all other Obligations hereunder and
the resignation of the Administrative Agent.


 


(h)                                 Refunds.  If the Administrative Agent or a Lender (or
former Lender) determines, in its sole discretion exercised in good faith, that
it has received a refund of any Taxes or Other Taxes as to which it has been
indemnified by any Loan Party or with respect to which such Loan Party has paid
additional amounts pursuant to this Section, it shall pay over 


 


53





















 


such refund to such Loan Party (but only to the extent of indemnity
payments made, or additional amounts paid, by such Loan Party under this
Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent or such Lender
(or former Lender) and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund); provided, however,
that the Borrower, upon the request of the Administrative Agent or such Lender
(or former Lender), agrees to repay the amount paid over to such Loan Party (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender (or former Lender) in the
event the Administrative Agent or such Lender (or former Lender) is required to
repay such refund to such Governmental Authority.  Nothing contained in this paragraph shall
require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to any Loan Party or any other Person.


 


Section 2.18  Payments Generally; Pro Rata Treatment;
Sharing of Setoffs.


 


(a)                                  Payments
by the Borrower.  The Borrower shall
make each payment required to be made by it hereunder or under any other Loan
Document (whether of principal, interest, fees, or reimbursement of LC
Disbursements or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) on or before the time expressly required hereunder or under such
other Loan Document for such payment (or, if no such time is expressly
required, prior to 12:00 noon, New York City time), on the date when due, in
immediately available funds, without setoff or counterclaim.  Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon.  All such payments shall
be made to the Administrative Agent at its offices at 300 Madison Avenue, New
York, New York 10017, except for payments to be made directly to the respective
LC Issuer or Swingline Lender as expressly provided herein, and except that
payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly
to the Persons entitled thereto and payments pursuant to other Loan Documents
shall be made to the Persons specified therein. 
The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof.  If any
payment under any Loan Document shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business
Day, and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. 
All payments under each Loan Document shall be made in dollars.


 


(b)                                 Application
of Insufficient Payments. 
If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees and other amounts then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees
and other amounts then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees and other amounts
then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and all
unreimbursed LC Disbursements then due to such parties.


 


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(c)                                  Pro Rata Treatment.  Except
to the extent otherwise provided herein: 
(i) each Borrowing of a particular Class (including of a particular
Series of Incremental Loans) shall be made from the relevant Lenders, each
payment of commitment fee under Section 2.12 shall be made for account of the
relevant Lenders, and each termination or reduction of the amount of the
Commitments of a particular Class (including of a particular Series of
Incremental Loans) under Section 2.08 shall be applied to the respective
Commitments of such Class of the relevant Lenders, pro rata according to the
amounts of their respective Commitments of such Class; (ii) each Borrowing of
any Class (including of a particular Series of Incremental Loans) shall be
allocated pro rata among the relevant Lenders according to the amounts of their
respective Commitments of such Class (in the case of the making of Loans) or
their respective Loans of such Class that are to be included in such Borrowing
(in the case of conversions and continuations of Loans); (iii) each payment or
prepayment by the Borrower of principal of Loans of a particular Class
(including of a particular Series of Incremental Loans) shall be made for
account of the relevant Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans of such Class held by them; and (iv) each
payment by the Borrower of interest on Loans of a particular Class (including
of a particular Series of Incremental Loans) shall be made for account of the
relevant Lenders pro rata in accordance with the amounts of interest on such
Loans then due and payable to the respective Lenders.


 


(d)                                 Sharing
of Payments by Lenders. 
If any Lender shall, by exercising any right of set off or counterclaim
or otherwise, obtain payment in respect of any principal of or interest on any of
its Loans or participations in LC Disbursements or Swingline Loans resulting in
such Lender receiving payment of a greater proportion of the aggregate amount
of its Loans or participations in LC Disbursements and Swingline Loans and
accrued interest thereon than the proportion received by any other Lender, then
the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans and participations in LC Disbursements and
Swingline Loans of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and participations in LC Disbursements, provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements or Swingline Loans to any assignee or participant, other
than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). 
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.


 


(e)                                  Presumptions
of Payment.  Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or any LC Issuer hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower 


 


55





















 


has made such payment on such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or such LC Issuer, as the case may be, the amount
due.  In such event, if the Borrower has
not in fact made such payment, then each of the Lenders and such LC Issuer, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or such LC Issuer,
as the case may be, with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.


 


(f)            Certain
Deductions by the Administrative Agent. 
If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.06(b), 2.18(e) or 9.03(c), then the Administrative Agent
may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of
such Lender to satisfy such Lender’s obligations under such Sections until all
such unsatisfied obligations are fully paid.


 


Section 2.19  Mitigation Obligations; Replacement of
Lenders.


 


(a)           Designation
of New Lending Office.  Prior to any
Lender requesting compensation under Section 2.15, or the Borrower paying any
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.17, such Lender shall use reasonable
efforts (to the extent not inconsistent with such Lender’s applicable legal and
regulatory restrictions) to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the reasonable
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
and (ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.


 


(b)           Replacement
of Lenders.  If any Lender
requests compensation under Section 2.15, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, or if any Lender defaults in
its obligation to fund Loans hereunder, or if any Lender shall decline to
consent to any modification or waiver hereunder requiring 100% of the Lenders
affected thereby (or of an affected Class or of the type set forth in clauses
(i) through (vii) of Section 9.02(b)) to consent thereto and, in each case, the
Required Lenders have already consented thereto, then the Borrower may, at its
sole expense and effort, upon written notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i)
the Borrower shall have received the prior written consent of the
Administrative Agent (and, if a Revolving Commitment is being assigned, each LC
Issuer and the Swingline Lender), which consent shall not unreasonably be
withheld, and (ii) such Lender shall have received payment of


 


56





















 


an amount equal to the
outstanding principal of its Loans and participations (to the extent funded by
such Lender and not subsequently repaid) in LC Disbursements and Swingline
Loans, accrued interest thereon, and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts).  Upon receipt by the applicable Lender of all
amounts required to be paid to it pursuant to this Section 2.19(b), the
Administrative Agent shall be entitled (but not obligated) and authorized to
execute an Assignment and Assumption on behalf of such Lender, and any such
Assignment and Assumption so executed by the Administrative Agent and the
assignee shall be effective for purposes of this Section 2.19(b) and Section
9.04.  A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.


 


ARTICLE III



REPRESENTATIONS AND WARRANTIES


 


Each
of the Parent and the Borrower represents and warrants to the Lenders that:


 


Section 3.01  Organization; Powers.  The Parent, the Borrower and the Subsidiaries
are duly organized, validly existing and in good standing under the laws of the
jurisdiction of their organization, respectively, have all requisite power and
authority to carry on their respective businesses as now conducted and as
proposed to be conducted, and are qualified to do business in, and are in good
standing in, every jurisdiction where such qualification is required, except
where the failure to be so qualified could not reasonably be expected to result
in a Material Adverse Effect.


 


Section 3.02  Authorization; Enforceability.  The Transactions to be entered into by each
Loan Party are within such Loan Party’s corporate and other powers and have
been duly authorized by all necessary corporate and, if required, stockholder
action.  This Agreement has been duly
executed and delivered by the Parent and the Borrower and constitutes, and each
other Loan Document to which any Loan Party is to be a party, when executed and
delivered by such Loan Party, will constitute, a legal, valid and binding
obligation of the Borrower or such Loan Party (as the case may be), enforceable
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.


 


Section 3.03  Governmental Approvals; No Conflicts.  The Transactions (a) do not require any
consent or approval of, registration or filing with, or any other action by or
before, any Governmental Authority, except (i) such as have been obtained
or made and are in full force and effect, (ii) filings necessary to
perfect Liens created under the Loan Documents and (iii) filings with the
SEC that are necessary to consummate the tender and consent solicitation of the
holders of the Senior Unsecured Notes or required in connection with the Equity
Issuance or the tender and consent solicitation of the holders of the Senior
Subordinated Notes, (b) will not violate any applicable law or regulation
or the terms of the charter, by-laws or


 


57





















 


other
organizational documents of the Parent, the Borrower or any of the
Subsidiaries, or the terms of any of the Authorizations, or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Parent, the Borrower
or any of the Subsidiaries or any of their assets, or give rise to a right
thereunder to require any payment to be made by the Parent, the Borrower or any
of the Subsidiaries, and (d) will not result in the creation or imposition of
any Lien on any asset of the Parent, the Borrower or any of the Subsidiaries,
except Liens created under the Loan Documents.


 


Section 3.04  Financial Condition; No Material Adverse
Effect.


 


(a)           Financial
Statements.  The Borrower has
heretofore furnished to the Lenders (i) audited consolidated and consolidating
balance sheets and related statements of income, stockholder’s equity and cash
flows of the Parent and its subsidiaries for the fiscal years ending on
December 31 of 2002 and 2003, in each case prepared by Deloitte & Touche
LLP, or other independent public accountants of recognized national standing,
and (ii) unaudited consolidated and consolidating balance sheets and related
statements of income, stockholder’s equity and cash flows of the Parent and its
subsidiaries and for each fiscal quarter ended after December 31, 2003 and at
least 45 days before the Closing Date. 
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Parent and
its consolidated subsidiaries as of such dates and for such periods in
accordance with GAAP, subject to normal year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii)
above.


 


(b)           Pro Forma Financial Statements.  The
Borrower has heretofore furnished to the Lenders (i) the unaudited pro forma
consolidated balance sheet of the Borrower and the Subsidiaries as of September
30, 2004 and (ii) the related unaudited pro forma consolidated income statement
(including a calculation of Adjusted EBITDA) of the Borrower and the
Subsidiaries for the period of four fiscal quarters then ended, in each case
prepared giving effect to the Transactions as if the Transactions had occurred
on the last day of such period.  Such pro
forma financial statements (i) have been prepared in good faith based on the
same assumptions used to prepare the pro forma financial statements included in
the Information Materials (which assumptions were believed by the Borrower to
be reasonable as of the date of the Information Materials), (ii) were
based, after due inquiry, on the best information available to the Borrower
when made, (iii) accurately reflect all material adjustments necessary to
give effect to the Transactions and (iv) present a good faith estimate of
the pro forma financial position of the Borrower, (A) in the case of such
pro forma consolidated balance sheet, as of the end of such period as if the
Transactions had occurred on the last day of such period and (B) in the case of
such pro forma consolidated income statement, as if the Transactions had
occurred on the first day of such period.


 


(c)           Absence
of Liabilities.  Except as disclosed
in the financial statements referred to above or the notes thereto or in the
Information Materials and except for the Disclosed Matters, after giving effect
to the Transactions, the Borrower does not have, as of the Closing Date, any
material contingent or other material liabilities, unusual material long-term
commitments or material unrealized losses.


 


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(d)           Absence
of Material Adverse Effect. 
Since December 31, 2003, no event or circumstance has occurred that has
had or could reasonably be expected to have a material adverse effect on the
business, assets, results of operations, properties or financial condition of
the Parent, the Borrower and the Subsidiaries, taken as a whole.


 


Section 3.05  Properties.


 


(a)           Title.  (i) As of the date hereof, each of the
Parent, the Borrower and the Subsidiaries has good fee simple title to all of
the Owned Real Property listed on Schedule 3.05(c)(i) hereto and a valid
leasehold interest in all of the Leased Real Property set forth on Schedule
3.05(c)(iii) hereto, and good title to all personal property material to the
business of the Parent, the Borrower and the Subsidiaries, taken as a whole,
except, in each case, for such defects in title that do not materially
interfere with the ability of the Parent, the Borrower and the Subsidiaries,
taken as a whole, to conduct their business as currently conducted or to
utilize such properties for their intended purposes, free and clear of all
Liens, other than Liens created or permitted by any Loan Documents and
(ii) each Real Property Lease is the legal, valid and binding obligation
of the applicable Loan Party thereto, enforceable against such Loan Party in
accordance with its terms, except to the extent enforceability thereof may be
limited by applicable insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.


 


(b)           Intellectual
Property; Operating Licenses. 
Each of the Parent, the Borrower and the Subsidiaries owns, or is
licensed to practice, all trademarks, trade names, copyrights, patents and
other intellectual property material to the business of the Parent, the
Borrower and the Subsidiaries, taken as a whole, and the conduct of the
business by the Parent, the Borrower and the Subsidiaries does not infringe
upon the rights of any other Person, except for any such infringements that,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.  Schedule
3.05(b) accurately and completely lists as of the date hereof, all Operating
Licenses granted or assigned to the Parent, the Borrower or any of the
Subsidiaries, or under which the Parent, the Borrower and the Subsidiaries will
have the right to operate their respective businesses, and such Operating
Licenses are sufficient for the Parent, the Borrower and its Subsidiaries to
conduct in all material respects the business of the Parent, the Borrower and
its Subsidiaries, taken as a whole, as of the date hereof.


 


(c)           Real
Property.  (i) As of the date
hereof, set forth on Schedule 3.05(c)(i) hereto is a list of all real
property owned by any Loan Party with an assessed value of $25,000 or more,
showing as of the Closing Date the street address, county or other relevant
jurisdiction, state, province, record owner and an assessed value thereof,
which list is complete and accurate in all material respects; (ii) set forth on
Schedule 3.05(c)(ii) is a complete and accurate list of all Mortgaged Property
owned by the Parent, the Borrower or any Subsidiary, showing as of the Closing
Date the street address, county or other relevant jurisdiction, state,
province, record owner and an assessed value thereof; and (iii) set forth on
Schedule 3.05(c)(iii) hereto is a list of all Leased Real Property under
which the Parent, the Borrower or any Subsidiary is the lessee, showing as of
the Closing Date the names of the lessor and lessee, the location of such real
property, the expiration date of such leases, the square footage of the leased
premises, if available, and the annual rental cost thereof, which list is
complete and accurate in all material


 


59





















 


respects. As of the Closing
Date, the Mortgaged Property constitutes all of the Material Real Property of
the Loan Parties.


 


(d)           Condemnations,
Etc.  As of the date hereof, neither the Parent,
the Borrower nor any of the Subsidiaries has received written notice of, or has
knowledge of, any pending or contemplated condemnation proceeding affecting any
Mortgaged Property or any sale or disposition thereof in lieu of
condemnation.  As of the date hereof,
neither any Mortgaged Property nor any interest therein is subject to any right
of first refusal, option or other contractual right to purchase such Mortgaged
Property or interest therein.


 


Section 3.06  Litigation and Environmental Matters.


 


(a)           Litigation.  There are no actions, suits or proceedings by
or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Parent or the Borrower, threatened against or affecting the Parent,
the Borrower or any of the Subsidiaries (i) that could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve any of the Loan Documents or
the Transactions.


 


(b)           Disclosed
Matters.  Except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Parent, the Borrower nor any of the Subsidiaries (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) has become subject
to any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.


 


Section 3.07  Compliance with Laws and Agreements.  Each of the Parent, the Borrower and the
Subsidiaries is in compliance with all laws, regulations and orders (including
any Environmental Law or Communications Law, the Patriot Act, margin
regulations, FCC and RCA regulations and ERISA) of any Governmental Authority
applicable to it or its property and all indentures, agreements and other
instruments binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.  No Default
has occurred and is continuing.


 


Section 3.08  Investment and Holding Company Status.  Neither the Parent, the Borrower nor any of
the Subsidiaries is (a) an “investment company” as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, or (b) a “holding
company” as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended.


 


Section 3.09  Taxes.  Each of the Parent, the Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) any Taxes that are being contested
in good faith by appropriate proceedings and for which the Parent, the Borrower
or such Subsidiary, as applicable, has set aside on its books reserves in
accordance with GAAP


 


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or (b)
failures to file or cause to be filed or pay or cause to be paid that would not
reasonably be expected to result in a Material Adverse Effect.


 


Section 3.10  ERISA.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability to the Borrower or the Subsidiaries is reasonably expected
to occur, could reasonably be expected to result in a Material Adverse
Effect.  The present value of all
accumulated benefit obligations under all Plans (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plans, except as could not
reasonably be expected to result in a Material Adverse Effect.


 


Section 3.11  Disclosure.  The Borrower has disclosed to the Lenders all
agreements, instruments and corporate or other restrictions to which the
Parent, the Borrower or any of the Subsidiaries is subject, and all other
matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect.  On the date as of which such information is
dated or certified (or if not dated or certified, as of the date such
information was furnished) none of the Information Materials, as modified or supplemented
by other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender prior to the Closing Date contains any
material misstatement of fact which makes such information misleading in any
material respect at such time in light of the circumstances under which such
information was provided nor omits to state any material fact necessary to make
the statements therein, at such time in the light of the circumstances under
which such information was provided, not misleading in any material respect (in
each case, taken as a whole), provided that, with respect to projected
financial information, the Borrower represents only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time such projections were prepared.


 


Section 3.12  Subsidiaries.  The Parent does not as of the Closing Date
have any subsidiaries other than the Borrower and the Subsidiaries.  Schedule 3.12 is a complete and correct list
of the Subsidiaries as of the date hereof, together with, for each Subsidiary,
(a) the jurisdiction of organization of such Subsidiary, (b) each Person
holding ownership interests in such Subsidiary and (c) the nature of the
ownership interests held by each such Person and the percentage of ownership of
such Subsidiary represented by such ownership interests.  Except as disclosed in Schedule 3.12, as of
the Closing Date (x) each of the Parent, the Borrower and the Subsidiaries
owns, free and clear of Liens (other than Liens created pursuant to the
Security Documents), and has the unencumbered right to vote, all outstanding
ownership interests in each Person shown to be held by it in Schedule 3.12, (y)
all of the issued and outstanding capital stock of each such Person organized
as a corporation is validly issued, fully paid and nonassessable and (z) there
are no outstanding Equity Rights with respect to such Person.


 


Section 3.13  Insurance.  Schedule 3.13 sets forth a description of all
material insurance maintained by or on behalf of the Parent, the Borrower and
the Subsidiaries as of the Closing Date. 
As of the Closing Date, all premiums in respect of such insurance have
been paid.  The Parent and the Borrower
believe that the insurance maintained by or on behalf of the Parent, the
Borrower and the Subsidiaries is adequate with respect to the business of the
Parent, the Borrower and the Subsidiaries, taken as a whole.


 


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Section 3.14  Labor Matters.  As of the Closing Date there are no strikes,
lockouts or slowdowns against the Parent, the Borrower or any Subsidiary
pending or, to the knowledge of the Parent and the Borrower, threatened.  The hours worked by and payments made to
employees of the Parent, the Borrower and the Subsidiaries have not been in
material violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters.  Except as would not reasonably be expected to
have a Material Adverse Effect, all payments due from the Parent, the Borrower
or any Subsidiary, or for which any claim may be made against the Parent, the
Borrower or any Subsidiary, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the
books of the Parent, the Borrower or such Subsidiary.  The consummation of the Transactions will not
give rise to any right of termination or right of renegotiation on the part of
any union under any collective bargaining agreement to which the Parent, the
Borrower or any Subsidiary is bound.


 


Section 3.15  Solvency.  Immediately after the consummation of the
Transactions to occur on the Closing Date, as applicable, and immediately
following the making of each Loan made on the Closing Date and after giving
effect to the application of the proceeds of such Loans on the Closing Date,
the Loan Parties (taken as a whole) are Solvent.


 


Section 3.16  Security Interests.


 


(a)           Pledge
Agreement.  The Pledge
Agreement is effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in all of the Equity Interests of the Borrower and each Subsidiary
pledged pursuant thereto and all Indebtedness of each Loan Party to the
Borrower or any other Loan Party and, when the portion of such Collateral
constituting instruments or certificated securities (as defined in the Uniform
Commercial Code as in effect in the State of New York) is delivered to the
Collateral Agent, such security interest shall constitute a fully perfected
first priority Lien on, and security interest in, all right, title and interest
of the pledgor thereunder in such Collateral, in each case prior and superior
in right to any other Person, other than with respect to the rights of Persons
pursuant to Liens expressly permitted by Section 6.02.


 


(b)           Security
Agreement.  The Security
Agreement is effective to create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral (as defined in the Security Agreement) and, when
financing statements in appropriate form are filed in the offices specified on
Schedule 6 to the Perfection Certificate, the Security Agreement shall
constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Collateral to the extent
perfection can be obtained by filing Uniform Commercial Code financing
statements, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly
permitted by Section 6.02.


 


(c)           Intellectual
Property.  When the
Intellectual Property Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office within the time
period specified by applicable law, the security interests created thereunder
shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties in the Intellectual Property (as
defined in the Security Agreement) in which a


 


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security interest may be
perfected by filing, recording or registering a security agreement, financing
statement or analogous document in the United States Patent and Trademark
Office or the United States Copyright Office, as applicable, in each case prior
and superior in right to any other Person, other than with respect to the
rights of Persons pursuant to Liens expressly permitted by Section 6.02 (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on United States patents, patent applications, registered
trademarks, trademark applications and copyrights acquired by the Loan Parties
after the date hereof), and it being further understood that, to the extent
that the United States federal trademark, patent and copyright laws are not
applicable to the perfection of security interests, the filing of financing
statements under Section 3.16(b) shall perfect the Liens granted by the Loan
Parties on such intellectual property to the extent perfection can be obtained
by filing UCC financing statements.


 


(d)           Mortgages.  When the Mortgages are filed in the offices
specified on Schedule 3.16(d), the Mortgages shall constitute a Lien on, and
security interest in, all right, title and interest of the Loan Parties in such
Mortgaged Properties and the proceeds thereof, in each case prior and superior in
right to any other Person, other than with respect to the rights of Persons
pursuant to Liens expressly permitted by Section 6.02 and the applicable
Permitted Encumbrances with respect to such Mortgaged Property.


 


Section 3.17  Regulatory Matters.  Except with respect to any other matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, neither the Parent, the Borrower nor any
of the Subsidiaries (a) has failed to comply with any Communications Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Communications Law, (b) has become subject to any Communications
Liability, (c) has received notice of any claim with respect to any
Communications Liability or (d) knows of any basis for any Communications
Liability.


 


Section 3.18  Senior Indebtedness.  The Obligations constitute “Senior
Indebtedness” under and as defined in the Subordinated Debt Documents and
Senior Unsecured Debt Documents, entitled to the benefits and provisions
provided for therein.


 


ARTICLE IV



CONDITIONS OF LENDING


 


Section 4.01  Closing Date.  The obligations of the Lenders to make Loans,
and of the LC Issuers to issue Letters of Credit, hereunder is subject to the
condition precedent that each of the following conditions shall have been
satisfied (or waived in accordance with Section 9.02):


 


(a)           Counterparts
of Agreement.  The Administrative
Agent (or its counsel) shall have received from each party hereto either (i) a
counterpart of this Agreement signed on behalf of such party or (ii) written
evidence satisfactory to the Administrative Agent (which may include telecopy
or electronic transmission of a signed signature page of this Agreement) that
such party has signed a counterpart of this Agreement.


 


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(b)           Opinions
of Counsel.  The Administrative
Agent shall have received a favorable written opinion (addressed to the
Administrative Agent and the Lenders and dated the Closing Date) of each of (i)
Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the Loan Parties,
substantially in the form of Exhibit B-1, (ii) Leonard A. Steinberg, Esq.,
counsel to the Loan Parties, substantially in the form of Exhibit B-2 and
(iii) Birch, Horton, Bittner & Cherot, Alaskan regulatory counsel for
the Loan Parties, substantially in the form of Exhibit B-3.  The Borrower hereby requests such counsel to
deliver such opinions.


 


(c)           Corporate
Documents.  The Administrative
Agent shall have received such documents and certificates as the Administrative
Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Parent, the Borrower and the Subsidiaries,
the authorization of the Transactions to occur on the Closing Date and any
other legal matters relating to the Parent, the Borrower and the Subsidiaries,
the Loan Documents or such Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.


 


(d)           Officer’s
Certificate.  The Administrative
Agent shall have received a certificate, dated the Closing Date and signed by
the President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and (b)
of Section 4.02.


 


(e)           Fees
and Expenses.  The Arrangers shall
have received all fees and other amounts due and payable on or prior to the
Closing Date in connection with the Transactions, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of Shearman & Sterling LLP)
required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document.


 


(f)            Security
Documents.  The Administrative
Agent shall have received the Security Agreement, the Pledge Agreement, Parent
Guarantee Agreement and Subsidiary Guarantee Agreement, duly executed and
delivered by the respective Loan Parties party thereto, together with the
following:


 


(i)            all certificates representing all the
outstanding shares of Equity Interests of the Borrower and each Subsidiary
owned by or on behalf of any Loan Party as of the Closing Date and required to
be pledged under the Pledge Agreement (except that stock certificates
representing shares of common stock of a Foreign Subsidiary that is a CFC may
be limited to 66% of the outstanding shares of common stock of such first-tier
Foreign Subsidiary), all promissory notes evidencing intercompany Indebtedness
owed to any Loan Party as of the Closing Date, and stock powers and instruments
of transfer, endorsed in blank, with respect to such stock certificates and
promissory notes;


 


(ii)           all documents and instruments, including
Uniform Commercial Code financing statements and Intellectual Property Security
Agreements, required by law or reasonably requested by the Administrative Agent
to be filed, registered or recorded to create or perfect the Liens on the
Collateral owned or to


 


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be acquired on or before the
Closing Date and intended to be created under the Security Agreement and the
Pledge Agreement;


 


(iii)          a completed Perfection Certificate dated the
Closing Date and signed by an executive officer or Financial Officer of the
Borrower, together with all attachments contemplated thereby, including the
results of a search of the Uniform Commercial Code (or equivalent) filings made
with respect to the Loan Parties, in the jurisdictions contemplated by the
Perfection Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.02 or have been released; and


 


(iv)          except as set forth in Section 5.17, 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 and the Pledge Agreement has
been taken (including, without limitation, receipt of duly executed payoff
letters.


 


(g)           Intercompany
Subordination Agreement. 
The Administrative Agent shall have received the Intercompany
Subordination Agreement, duly executed and delivered by each Loan Party.


 


(h)           Insurance.  Subject to Section 5.18(d), the
Administrative Agent shall have received evidence reasonably satisfactory to
the Administrative Agent that the insurance required by Section 5.07 and
the Security Agreement is in effect.


 


(i)            Consents
and Approvals.  All consents and
approvals required to be obtained from any Governmental Authority or other
Person (including the board of directors of each Loan Party and, if applicable,
the required consents from the holders of the Senior Unsecured Notes) in
connection with the Transactions shall have been obtained, copies thereof shall
have been delivered to the Administrative Agent, in each case without the
imposition of any conditions reasonably expected to have a Material Adverse
Effect or to affect the rights or security of the Lenders hereunder.


 


(j)            Financial
Information. (i) The Lenders shall have received (x) an unaudited pro
forma consolidated balance sheet of the Parent, the Borrower and the
Subsidiaries as of the Closing Date after giving effect to the Transactions as
if they occurred on the last day of the most recently completed fiscal quarter
of the Borrower ended at least 45 days prior to the Closing Date and (y) an
unaudited pro forma consolidated income statement of the Parent, the Borrower
and the Subsidiaries giving effect to the Transactions as if they had occurred
at the beginning of the periods presented, including a calculation of Adjusted
EBITDA, for the last reported fiscal year and for the year-to-date period ended
on the most recently completed fiscal quarter of the Borrower ended at least 45
days prior to the Closing Date, (ii) the most recently available year-to-date
unaudited consolidated balance sheet and income statement of the Parent and its
Subsidiaries and (iii) the pro forma balance sheet and income statement
provided in clause (i) above shall reflect that on the Closing Date either the
Total Leverage Ratio shall not


 


65





















 


exceed 4.40 to 1 or the Senior
Secured Leverage Ratio shall not exceed 2.75 to 1, in each case in this clause
(ii) deducting from the Total Leverage Ratio and the Senior Secured Leverage
Ratio amounts held in the Senior Unsecured Notes Account to fund the tender
offer for the Senior Unsecured Notes in connection with the Transactions,
amounts held in the Senior Subordinated Notes Account which will be applied to
fund the tender offer for and redeem the Senior Subordinated Notes and amounts
held in the Collateral Account.


 


(k)           (i) The principal of and
interest on all loans outstanding under, and all other amounts due with respect
to, the Existing Credit Agreement shall have been repaid in full, (ii) all
commitments to lend under the Existing Credit Agreement shall have been
terminated, (iii) all obligations under or relating to the Existing Credit
Agreement and all Liens and security interests relating to all of the foregoing
shall have been discharged and (iv) the Administrative Agent shall have
received satisfactory evidence of such repayment, termination and discharge.


 


(l)            No
more than $5,000,000 in aggregate principal amount of Revolving Loans shall be
outstanding on the Closing Date after giving effect to the Transactions.


 


(m)          After giving effect to the
Transactions and the other transactions contemplated hereby, on the Closing
Date, Parent and its subsidiaries shall have outstanding no Indebtedness or
preferred stock other than (a) the loans and other extensions of credit
hereunder, (b) the Senior Subordinated Notes, (c) the Senior Unsecured Notes,
and (d) other Indebtedness permitted under Sections 6.01(a).


 


(n)           The Administrative Agent shall
have received a certificate from the Chief Financial Officer of the Borrower
dated as of the Closing Date and satisfactory to the Administrative Agent
attesting to the Solvency of the Loan Parties taken as a whole before and after
giving effect to the Transactions.


 


(o)           The Administrative Agent shall
have received evidence that notice of the Transactions has been given to Moody’s
and S&P and shall have received confirmation of, or notice of any
announcement by Moody’s or S&P of any change or possible change in, the
Borrower’s senior secured debt rating as a result of the Transactions.


 


(p)           (i) The Transactions shall have
been consummated on terms, with a structure and in a manner reasonably
satisfactory to the Administrative Agent, it being understood that (x) the
Equity Issuance may not be consummated by the Closing Date, and (y) the
tender offer solicitations for the Senior Subordinated Notes and the Senior
Unsecured Notes will not be consummated until up to 10 Business Days following
the Closing Date, (ii) all conditions precedent to the consummation of the
tender offer for the Senior Unsecured Notes shall have been waived by the
Borrower except for the lapse of 20 Business Days from the commencement
thereof, (iii) the requisite number of holders shall have consented to amend
the Senior Unsecured Debt Documents in a manner satisfactory to the
Administrative Agent and such amendment shall be in full force and effect, and
(iv) the Administrative Agent 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


 


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Interest in each Loan Party and
each such Subsidiary and of each agreement or instrument relating to such
structure or capitalization.


 


(q)           Collateral
Accounts.  Separate collateral
accounts shall have been established with the Administrative Agent or its
sub-agent on terms satisfactory to the Administrative Agent to hold (i) funds
for the repayment of the Senior Subordinated Notes (the “Senior Subordinated
Notes Account”), (ii) funds for the repayment of the portion of the Senior
Unsecured Notes that are tendered on the Closing Date (the “Senior Unsecured
Notes Account”), and (iii) proceeds of the Term Loans deposited to the
collateral account pursuant to Section 2.01(b)(ii) (the “Collateral Account”),
and cash proceeds from the Equity Issuance and cash on the balance sheet of the
Borrower shall have been, or concurrently will be, deposited into the Senior
Subordinated Notes Account which together with the amounts deposited in the
Collateral Account will be equal to the outstanding principal, interest and
tender and call premiums required to repay the Senior Subordinated Notes in
full.


 


(r)            Borrowing
Request.  The Administrative
Agent shall have received a duly completed Borrowing Request for the initial
Borrowing hereunder.


 


The
Administrative Agent shall notify the Borrower and the Lenders of the Closing
Date, and such notice shall be conclusive and binding.  Notwithstanding the foregoing, the
obligations of the Lenders to make Loans and of the LC Issuers to issue Letters
of Credit hereunder shall not become effective unless each of the foregoing
conditions is satisfied (or waived pursuant to Section 9.02) at or prior to
5:00 p.m., New York City time, on February 28, 2005 (and, in the event such
conditions are not so satisfied or waived at or prior to such time, this
Agreement shall not become effective).


 


Section 4.02  Each Borrowing.  The obligation of each Lender to make a Loan
(including an Incremental Loan and a Swingline Loan) on the occasion of any
Borrowing, and of each LC Issuer to issue, renew or extend any Letter of
Credit, is subject to receipt of the request therefor in accordance herewith
and to the satisfaction of the following conditions:


 


(a)           Truth
of Representations.  The representations
and warranties of each Loan Party set forth in the Loan Documents shall be true
and correct in all material respects on and as of the date of such Borrowing or
on the date of issuance, renewal or extension of such Letter of Credit, as
applicable (or, if any such representation and warranty is expressly stated to
have been made as of a specific date, as of such specific date).


 


(b)           Absence
of Defaults.  At the time of and
immediately after giving effect to such Borrowing, or the issuance, renewal or
extension of such Letter of Credit, as applicable, no Default shall have
occurred and be continuing.


 


Each
Borrowing and each issuance, renewal or extension of a Letter of Credit shall
be deemed to constitute a representation and warranty by the Parent and
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.


 


Section 4.03  Each Incremental Loan.  The obligation of each Incremental Loan
Lender of any Series to make an Incremental Loan of such Series is subject to
the satisfaction of the additional condition that no Dividend Suspension Period
shall have occurred and be


 


67





















 


continuing as
of the date of such Borrowing and to the receipt by the Administrative Agent of
a certificate to such effect, dated the date of the making of such Incremental
Loan and signed by the President, a Vice President or a Financial Officer of
the Borrower.


 


ARTICLE V



AFFIRMATIVE COVENANTS


 


Until
the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated (or fully
collateralized in a manner reasonably satisfactory to the LC Issuers with cash
and/or letters of credit) and all LC Disbursements shall have been reimbursed,
each of the Parent and the Borrower covenants and agrees with the Lenders that:


 


Section 5.01  Financial Statements and Other Information.  The Borrower will furnish to the
Administrative Agent:


 


(a)           within 100 days after the end of
each of its fiscal year of the Borrower, the Parent’s audited consolidated and
unaudited consolidating balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all reported on by Deloitte & Touche LLP, or other independent public
accountants of recognized national standing (without a “going concern” or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the Parent and its consolidated subsidiaries on a consolidated
basis in accordance with GAAP, consistently applied (except if approved by such
accountants and disclosed in reasonable detail therein), provided that
if Parent is required to deliver the financial statements and other information
set forth in this paragraph to the Securities and Exchange Commission on an
earlier date, Parent shall deliver such information to the Administrative Agent
when such information is delivered to the SEC;


 


(b)           within 50 days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower,
the Parent’s unaudited consolidated and consolidating balance sheet and related
statements of operations, stockholders’ equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Parent and its consolidated subsidiaries on a consolidated
basis in accordance with GAAP, consistently applied (except if approved by such
accountants and disclosed in reasonable detail therein), subject to normal year-end
audit adjustments and the absence of footnotes, provided that if Parent
is required to deliver the financial statements and other information set forth
in this paragraph to the Securities and Exchange Commission on an earlier


 


68





















 


date, Parent shall deliver such
information to the Administrative Agent when such information is delivered to
the SEC;


 


(c)           within 60 days after the end of
each fiscal year of the Borrower and concurrently with any delivery of
financial statements under clause (b) above, a certificate of a Financial
Officer of the Borrower


 


(i)            certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto,


 


(ii)           setting forth (x) reasonably detailed
calculations of the Total Leverage Ratio, the Senior Secured Leverage Ratio and
Fixed Charges Coverage Ratio for the period of four consecutive fiscal quarters
of the Borrower then ended and of the amount of Adjusted EBITDA, Available
Cash, Available Equity Issuance Amount and Cumulative Distributable Cash
(including the aggregate amount of Capital Expenditures and acquisitions,
including any Permitted Acquisitions, financed with the proceeds of
Indebtedness permitted hereunder and identifying the clause of Section 6.01
that such Indebtedness is permitted under, and whether or not such Indebtedness
constitutes Revolving Loans), (y) reasonably detailed calculations
demonstrating compliance with Sections 6.01, 6.02, 6.04, 6.05, 6.08 and 6.12
and (z) the amount of dividends, if any, that the Borrower intends to pay on
the immediately succeeding date on which the Borrower’s dividend policy
provides for dividends to be paid by the Borrower; and


 


(iii)          stating whether any change in GAAP or in the
application thereof has occurred since the date of the Borrower’s audited
financial statements referred to in Section 3.04 and, if any such change has
occurred, specifying the effect of such change on the financial statements
accompanying such certificate;


 


(d)           concurrently with any delivery
of financial statements under clause (a) above, a certificate of the accounting
firm that reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial statements
of any Default (which certificate may be limited or eliminated to the extent
required by accounting rules or guidelines);


 


(e)           not later than 60 days after the
commencement of each fiscal year of the Borrower beginning on or after January
1, 2006, a detailed consolidated budget for such fiscal year (including a
projected consolidated balance sheet and related statements of projected
operations and cash flows as of the end of and for such fiscal year and setting
forth the assumptions used for purposes of preparing such budget (it being
understood that any such projections are subject to significant contingencies
and assumptions, many of which are beyond the control of the Borrower, and that
no assurances are offered that such projections will be realized)) and,
promptly when available, any significant revisions of such budget;


 


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(f)            reasonably
promptly after the same become publicly available, copies of each annual
report, proxy or financial statement or other material report or communication
sent to stockholders of the Parent, and copies of all annual, regular, periodic
and special reports and registration statements filed by the Parent, the
Borrower or any Subsidiary with the SEC, or with any national securities
exchange, as the case may be, and promptly following any reasonable request
therefor by the Required Lenders (through the Administrative Agent), copies of
all material periodic and other reports and other materials filed by the
Borrower or any Subsidiary with the FCC or the RCA, or any Governmental
Authority succeeding to any or all of the functions of the FCC or the RCA, as
applicable provided, that documents required to be delivered pursuant to
Section 5.01(a), (b) and (f) (to the extent any such documents are included in
materials otherwise filed with the SEC) may be delivered electronically and, if
so delivered, shall be deemed to have been delivered on the date on which such
documents are posted on the Borrower’s behalf on EDGAR or another relevant
website established by the SEC, if any, to which each Lender and the
Administrative Agent have access; provided, however, that:  (i) the Borrower shall deliver paper copies
of such documents to the Administrative Agent or any Lender if the
Administrative Agent or such Lender requests the Borrower to deliver such paper
copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify (which
may be by facsimile or electronic mail) the Administrative Agent and each
Lender of the posting of any such documents and provide to the Administrative
Agent by electronic mail electronic versions (i.e., soft copies) of such
documents.  The Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents; and


 


(g)           promptly following any request
therefor, such other information regarding the operations, business affairs and
financial condition of the Parent, the Borrower or any Subsidiary, or
compliance with the terms of any Loan Document, as the Administrative Agent or
any Lender may reasonably request in connection with the Loan Documents.


 


Section 5.02  Notices of Material Events.  The Parent and the Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the
following:


 


(a)           the occurrence of any Default;


 


(b)           the filing or commencement of
any action, suit or proceeding by or before any arbitrator or Governmental
Authority against or affecting the Parent, the Borrower or any Affiliate
thereof that could reasonably be expected to result in a Material Adverse
Effect;


 


(c)           the occurrence of any ERISA
Event that, alone or together with any other ERISA Events that have occurred,
could reasonably be expected to result in liability of the Borrower or any
ERISA Affiliate in an aggregate amount exceeding $3,000,000;


 


(d)           the commencement of any
proceeding by or before any Governmental Authority seeking the cancellation,
termination (including by means of non-renewal), limitation,


 


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adverse modification or adverse
conditioning of any Authorization or Operating License that could reasonably be
expected to result in a Material Adverse Effect; and


 


(e)           any other development that
results in, or could reasonably be expected to result in, a Material Adverse
Effect.


 


Each
notice delivered under this Section shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.


 


Section 5.03  Information Regarding Collateral.


 


(a)           Change
of Name or Location, Etc. 
The Borrower will furnish to the Administrative Agent prompt written
notice of any change (i) in any Loan Party’s corporate name, (ii) in the
location of any Loan Party’s jurisdiction of organization, any office in which
it maintains material books or records relating to Collateral owned by it or
any office or facility at which material Collateral owned by it is located
(including the establishment of any such new office or facility), (iii) in any
Loan Party’s identity or corporate structure or (iv) in any Loan Party’s
Federal Taxpayer Identification Number or other organizational identification
number.  The Parent and the Borrower
agree not to effect or permit any change referred to in the preceding sentence
unless all filings have been made under the Uniform Commercial Code or otherwise
that are required in order for the Administrative Agent to continue at all
times following such change to have a valid, legal and perfected security
interest in all the Collateral.  The
Parent and the Borrower also agree promptly to notify the Administrative Agent
if any material portion of the Collateral is damaged or destroyed.


 


(b)           Annual
Officer’s Certificate. 
Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to clause (a) of Section 5.01,
the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer of the Borrower setting forth the information required
pursuant to the Perfection Certificate or confirming that there has been no
change in such information since the date of the Perfection Certificate
delivered on the Closing Date, if any, or the date of the most recent
certificate delivered pursuant to this Section.


 


Section 5.04  Existence; Conduct of Business.  Each of the Parent and the Borrower will, and
will cause each of the Subsidiaries to, do or cause to be done all things
reasonably necessary to preserve, renew or replace and keep in full force and
effect its legal existence and the rights, licenses, Operating Licenses,
permits, privileges, franchises, patents, copyrights, trademarks and trade
names material to the conduct of its business, including the renewal and
maintenance of all Authorizations, except for those the failure to maintain,
preserve or keep in full force and effect could not reasonably be expected to
have a Material Adverse Effect, provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.


 


Section 5.05  Payment of Obligations.  Each of the Parent and the Borrower will, and
will cause each of the Subsidiaries to pay all its material Tax liabilities and
all material


 


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lawful claims
that, if unpaid, might by law become a Lien upon its property, before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.


 


Section 5.06  Maintenance of Properties.  Each of the Parent and the Borrower will, and
will cause each of the Subsidiaries to, keep and maintain all property material
to the conduct of the business of the Parent, the Borrower and the
Subsidiaries, taken as a whole, in good working order and condition, ordinary
wear and tear and unforeseen accidents excepted, and is and will be in
compliance with all terms and conditions of the Operating Licenses and
Authorizations and all Communications Laws, including all standards or rules
imposed by the FCC and the RCA or as imposed under any agreements with
telephone companies and customers, except where the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.


 


Section 5.07  Insurance.  The Parent and the Borrower will cause to be
maintained on behalf of the Borrower and the Subsidiaries, with financially
sound and reputable insurance companies or associations (or with adequate
self-insurance arrangements) (a) insurance in such amounts (with no greater
risk retention) and against such risks as are customarily maintained by
companies engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents.  The Borrower
will furnish to the Administrative Agent, upon reasonable request, information
in reasonable detail as to the insurance so maintained.


 


Section 5.08  Casualty and Condemnation.  The Borrower (a) will furnish to the
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of the Collateral or the
commencement of any action or proceeding for the taking of any Collateral or
any part thereof or interest therein under power of eminent domain or by
condemnation or similar proceeding in excess of $2,000,000 and (b) will ensure
that the Net Proceeds of any such event (whether in the form of insurance
proceeds, condemnation awards or otherwise) are collected and applied in
accordance with the applicable provisions of this Agreement.


 


Section 5.09  Books and Records; Inspection and Audit
Rights.  Each of the Parent
and the Borrower will, and will cause each of the Subsidiaries to, keep proper
books of record and account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and activities in
accordance with GAAP.  Each of the Parent
and the Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent or the Required Lenders,
upon reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants (with the
Borrower having the right to have representatives present during such
discussions), all at such reasonable times and as often as reasonably requested
(but at


 


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the expense of
the Borrower for only one visit during any fiscal year of the Borrower unless
an Event of Default shall have occurred and be continuing).


 


Section 5.10  Compliance with Laws.  The Borrower will, and will cause each of the
Subsidiaries to, comply with all laws, rules, regulations and orders, including
the Patriot Act, all other laws and regulations relating to money laundering
and terrorist activities and Environmental Laws, of any Governmental Authority
applicable to it or its property, including the payment of any regulatory fees
required by the FCC and the RCA, any fees associated with the Operating
Licenses or Authorizations, and all regulatory reporting and accounting
requirements, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


Section 5.11  Use of Proceeds.  The proceeds of the Revolving Loans and the
Letters of Credit will be used by the Borrower for working capital and general
corporate purposes, including Permitted Acquisitions, Capital Expenditures,
dividends and Investments.  The proceeds
of the Incremental Loans will be used by the Borrower for working capital and
general corporate purposes, including Permitted Acquisitions and Capital
Expenditures but excluding dividends and Investments (other than Permitted
Acquisitions).  The proceeds of the Term
Loans will be used to (a) repay all outstanding loans under the Existing Credit
Agreement, together with accrued and unpaid interest thereon and all other
amounts payable thereunder, and pay a portion of the principal of and accrued
and unpaid interest on, and other amounts owing in respect of, the Senior
Unsecured Notes, including related tender premiums), (b) pay all costs and
expenses associated with the Transactions and (c) fund cash onto the balance
sheet of the Borrower.  No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations G, U and X.


 


Section 5.12  Subsidiaries.  If any Subsidiary is formed or acquired after
the Closing Date, the Borrower will notify the Administrative Agent thereof
and, if such Subsidiary is a Subsidiary Loan Party, (a) the Borrower will cause
such Subsidiary to execute and deliver a Supplement to the Security Agreement
in the form attached thereto pursuant to which such Subsidiary will become a
party to, and agree to be bound by, the Security Agreement, a Subsidiary Guarantee
Agreement, and additional Security Documents (or supplements thereto) within
twenty Business Days after such Subsidiary is formed or acquired, and, within
thirty Business Days after such Subsidiary is formed or acquired, take such
actions to create and perfect Liens on such Subsidiary’s assets granted
pursuant to the Security Documents to secure the Obligations as the
Administrative Agent or the Required Lenders shall reasonably request and (b)
if any Equity Interest in or Indebtedness of such Subsidiary are owned by or on
behalf of any Loan Party, the Borrower will cause such Equity Interests and any
promissory notes evidencing such Indebtedness to be pledged pursuant to the
Pledge Agreement within twenty Business Days after such Subsidiary is formed or
acquired and shall deliver to the Administrative Agent the following:


 


(i)            certificates (if any) representing all the
outstanding Equity Interests of such Subsidiary owned by or on behalf of any
Loan Party, promissory notes (if any) evidencing intercompany Indebtedness owed
to such Subsidiary, and powers and


 


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instruments of transfer,
endorsed in blank, with respect to such certificates and promissory notes;


 


(ii)           all documents and instruments, including
Uniform Commercial Code financing statements, required by law or reasonably
requested by the Administrative Agent to be filed, registered or recorded to
create or perfect the Liens on the Collateral and intended to be created under
the Security Agreement and the Pledge Agreement; and


 


(iii)          all documents required to be delivered under
Section 5.14(b)(ii) with respect to any Material Real Property of such
Subsidiary;


 


Notwithstanding the
foregoing, if such Subsidiary is not a Subsidiary Loan Party, then the Borrower
shall (and shall cause each Subsidiary Loan Party) to take the action described
in clause (b) above (and, as applicable, the actions described in clauses (i)
and (ii) above) in order that the Administrative Agent shall have the benefits
of a Lien securing the obligations of the Borrower or such Subsidiary Loan
Party hereunder and under the other Loan Documents with respect to 66% of the
voting Equity Interests and 100% of all other Equity Interests of such
Subsidiary directly owned by the Borrower and such Subsidiary Loan Party.


 


In
addition to the foregoing, if any Subsidiary is formed or acquired after the
Closing Date (whether or not such Subsidiary is a Subsidiary Loan Party), the
Borrower will cause such Subsidiary to execute a counterpart of the
Intercompany Subordination Agreement and deliver the same to the Administrative
Agent.


 


Section 5.13  ACS Media Holdings LLC.  In the event that ACS Media Holdings LLC
becomes a Material Subsidiary after the Closing Date, the Borrower will cause
such Subsidiary to take all actions required by and in accordance with Section
5.12.


 


Section 5.14  Further Assurances.


 


(a)           Execution
of Additional Documents. 
The Parent and the Borrower will, and will cause each Subsidiary Loan
Party to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing statements, fixture filings, mortgages, deeds
of trust and other documents), which may be required under any applicable law,
or which the Administrative Agent or the Required Lenders may reasonably
request, to effectuate the transactions contemplated by the Loan Documents or
to grant, preserve, protect or perfect the Liens created or intended to be
created by the Security Documents or the validity or priority of any such Lien,
all at the expense of the Loan Parties. 
The Parent and the Borrower also agree to provide to the Administrative
Agent, from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.


 


(b)           Acquisition
of Material Assets.  (i) If any material
assets (including any real property or improvements thereto or any interest
therein) are acquired by the Parent, the Borrower or any Subsidiary Loan Party
after the Closing Date (other than assets constituting collateral security
under the Security Agreement that become subject to the Lien of the Security


 


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Agreement upon acquisition
thereof and assets of the type that are specifically excluded from the grant of
security under the Security Documents or by the terms of this Agreement), the
Borrower will notify the Administrative Agent and the Lenders thereof, and, if
requested by the Administrative Agent or the Required Lenders, the Parent and
the Borrower will cause such assets to be subjected to a Lien securing the
Obligations and will take, and cause the Subsidiary Loan Parties to take, such
actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Loan Parties; provided
that no Mortgages will be required to be placed on any of the Crest Assets.


 


(ii)           Notwithstanding the generality of the
foregoing or anything to the contrary contained in this Section 5.14, upon the
acquisition of any Material Real Property (a “New Mortgaged Property”)
by any Loan Party, then the Parent or the Borrower shall, or shall cause the
applicable Subsidiary to, in each case at such Loan Party’s expense,
(A) within 45 days after such acquisition, furnish to the Administrative
Agent a description, in detail reasonably satisfactory to the Administrative
Agent, of such New Mortgaged Property and (B) within 60 days (which dates in
clauses (A) and (B) herein may be extended for up to an additional 90 days by
the Administrative Agent in its sole discretion) after such acquisition,
furnish to the Administrative Agent (1) each of the items set forth in Section
5.18(b), in each case in respect of such New Mortgaged Property (provided
that surveys shall be furnished in accordance with the terms of Section
5.18(b)(iii) only to the extent reasonably requested by the Administrative
Agent and only to the extent surveys can reasonably be provided under
applicable climate conditions ) and (2) such other approvals, opinions or
documents as the Administrative Agent may reasonably request; provided
that this paragraph shall not apply to any Material Real Property acquired in
connection with the Crest Assets.


 


(c)           Operating
Licenses.  (i) Upon the
request of the Administrative Agent, to the extent permitted by applicable law
at the time of such request, the Parent and the Borrower shall grant, or cause
the applicable Subsidiary Loan Party to grant, to the Administrative Agent a
direct security interest in the Operating Licenses within 60 days after receipt
of such request; provided that, to the extent FCC or RCA consent shall
be required in connection with granting such security interest (but excluding
foreclosure and the exercise of other remedies for enforcement hereunder), such
consent shall be requested within 30 days after receipt of such request and
upon receipt of such FCC or RCA consent, such security interest shall be
granted within 10 Business Days thereof, such security interest to the extent
permitted by applicable law to be deemed effective as of the later of (A) the
time such security interest is otherwise required to be granted or (B) the date
on which the granting Loan Party was assigned or obtained control over such
Operating License, provided  further that, to the extent FCC
and/or RCA approval shall be required under applicable law for (I) the
operation and effectiveness of any grant, right or remedy hereunder or under
any other Loan Document or (II) taking any action that may be taken by the
Administrative Agent, the LC Issuer or any Lender hereunder or under any other
Loan Document, such grant, right, remedy or actions will be subject to such
prior FCC and/or RCA approval having been obtained by or in favor of the
Administrative Agent, the LC Issuer or Lender, as applicable.  Notwithstanding anything to the contrary
contained in this Agreement or any other Loan Document, neither the
Administrative Agent, the LC Issuer nor any Lender shall, without first
obtaining the approval of the FCC and/or RCA, as applicable, take any action


 


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pursuant to this Agreement or
any other Loan Document which would constitute or result in an assignment
(other than the granting of the security interest under the Loan Documents) of
any Operating License held by the Parent, the Borrower or any Subsidiary or any
change of control of the Parent, the Borrower or any Subsidiary if such
assignment or change in control would require, under then applicable law, the
prior approval of the FCC and/or the RCA, and voting rights in any Collateral representing
control of any license, permit or other authorization of the FCC and/or RCA
shall remain in the holder thereof authorized by the FCC and/or RCA until all
such necessary consents shall have been obtained.  Each of the Parent and the Borrower agrees to
take, and the Borrower agrees to cause each of its Subsidiaries to take, in
each case upon the occurrence and during the continuance of an Event of
Default, any action that the Administrative Agent may reasonably request in
order to obtain from the FCC and/or RCA or any other Governmental Authority
such approval as may be necessary to enable the Administrative Agent to assign
or transfer control of the Operating Licenses pursuant to the Loan Documents; provided,
that neither the Parent, the Borrower nor any of the Subsidiaries shall be
required to execute any form, certificate or application partly or wholly in
blank or to execute any such document signed subject to penalties for false
statements that contains assertions or statements that the Parent, the Borrower
or any such Subsidiary does not know to be true or which fails to contain
information which the Parent, the Borrower or any such Subsidiary believes in
good faith is required to be included for such form, certificate or application
to be materially complete and not misleading.


 


(ii)           Except to the extent prohibited by any
applicable rule or regulation of the RCA or FCC as in effect as of the date
hereof, or unless the Borrower and the Administrative Agent shall otherwise
agree (such agreement not to be unreasonably withheld), the Parent and the
Borrower agree to take all actions necessary or desirable to cause all Title
III authorizations issued by the FCC and all Operating Licenses to continue to
be held by the applicable License Subsidiaries.


 


(iii)          Except to the extent prohibited by any
applicable rule or regulation of the RCA or FCC as in effect as of the date
hereof, or unless the Borrower and the Administrative Agent shall otherwise
agree (such agreement not to be unreasonably withheld), the Parent and the
Borrower agree to take all actions necessary or desirable to cause each
after-acquired Operating License to be held in the applicable License
Subsidiary, provided that to the extent the Borrower or the applicable
Subsidiary shall not have received FCC or RCA approval with respect to the
foregoing at the scheduled closing of the acquisition of such Operating
License, the Borrower shall comply with the foregoing requirement as soon as
practicable following such acquisition (but in any event within 120 days after
such acquisition (or such longer period as may be agreed by the Administrative
Agent, such agreement not to be unreasonably withheld)).


 


Section 5.15  Ratings.  The Borrower will at all times maintain
senior secured credit ratings for the Loans with Moody’s and S&P.


 


Section 5.16  Hedging Agreements.  Within 180 days of the Closing Date, not less
than 50% of the aggregate principal amount of then outstanding Indebtedness for
borrowed money of the Loan Parties shall be, for a period of at least two years
measured from the Closing Date, either (x) fixed rate debt or (y) debt
subject to one or more Hedging Agreements with one


 


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or more of the
Lenders or Arrangers or an Affiliate of any thereof (and/or with a bank or
other financial institution having capital, surplus and undivided profits of at
least $500,000,000) approved by the Administrative Agent, that effectively
enables the Loan Parties (in a manner reasonably satisfactory to the Administrative
Agent) to protect themselves as to interest rates or (z) any combination
of (x) and (y) above to accomplish the foregoing.


 


Section 5.17  Compliance with Environmental Laws.  The Parent and the Borrower will comply, and
cause each Subsidiary and use its commercially reasonable efforts (which
efforts shall include making reasonable efforts to ensure that all applicable
leases, licenses or other such agreements include provisions requiring such
compliance) to:  cause all lessees and
other Persons operating or occupying its properties to comply, in all material
respects, with all Environmental Laws and Environmental Permits; obtain and
renew and cause each Subsidiary to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each
Subsidiary to conduct, any investigation, study, sampling and testing, and
undertake any cleanup, removal, remedial or other action necessary to remove
and clean up Hazardous Materials from any of its properties, to the extent
required by Environmental Laws, except where and to the extent that the failure
to comply with Environmental Laws, obtain or renew Environmental Permits or to
conduct such cleanup, removal, remedial or other action, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect; provided, however, that no Loan Party nor
any other Subsidiary 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.


 


Section 5.18  Conditions Subsequent to the Closing Date.  The Borrower agrees to deliver and cause the
Subsidiaries to deliver to the Administrative Agent by the dates indicated
below (which dates may be extended for up to an additional 90 days by the
Administrative Agent at its sole discretion) the following:


 


(a)           within 45 days following the
Closing Date, deposit account control agreements and, to the extent reasonably
requested by the Collateral Agent, securities account control agreements
referred to in the Security Agreement, duly executed by each depositary bank or
securities intermediary referred to in the Security Agreement;


 


(b)           within 60 days following the
Closing Date (except as otherwise specified herein), Mortgages covering the
Mortgaged Properties, duly executed by the Parent, the Borrower or the
applicable Subsidiary, together with:


 


(i)            evidence that counterparts of the Mortgages
have been duly executed, acknowledged and delivered and are in form suitable
for filing or recording 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
Administrative Agent for the benefit of the Lenders and that all filing and
recording taxes and fees necessary to record the Mortgages in the applicable
recording offices have been paid,


 


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(ii)           with respect to the Mortgaged Properties,
fully paid American Land Title Association Lender’s title insurance policies
(the “Mortgage Policies”) in form and substance, with endorsements
and in amounts reasonably acceptable to the Administrative Agent, issued by
title insurers reasonably acceptable to the Administrative Agent, insuring the
Mortgages of the Mortgaged Properties to be valid first and subsisting Liens on
the 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 direct access reinsurance as the
Administrative Agent may reasonably deem necessary or desirable,


 


(iii)          with respect to the Mortgaged Properties, to
the extent requested by the Administrative Agent, and within 6 months following
the Closing Date (which date may be extended by up to an additional 90 days by
the Administrative Agent at its sole discretion), American Land Title
Association/American Congress on Surveying and Mapping form surveys in form and
substance satisfactory to the Administrative Agent for which all necessary fees
(where applicable) have been paid, and dated no more than 30 days before the
filing of the related Mortgage, certified to the Administrative Agent and First
American Title Insurance Company (or such other title insurance company as may
be agreed upon by the Borrower and the Administrative Agent) in a manner and by
a surveyor reasonably satisfactory to the Administrative Agent,


 


(iv)          evidence of the insurance required by the
terms of the Mortgages,


 


(v)           to the extent reasonably requested by the
Administrative Agent, favorable opinions of local counsel to the Parent, the
Borrower and the Subsidiaries with respect to the Mortgaged Properties, in form
and substance reasonably satisfactory to the Administrative Agent, and


 


(vi)          with respect to the Mortgaged Properties,
such other consents, agreements and confirmations of third parties as the
Administrative Agent may deem necessary or desirable and evidence that all other
actions that the Administrative Agent may deem necessary or desirable in order
to create valid and first subsisting Liens on the property described in the
Mortgages has been taken;


 


(c)           within 30 days following the
Closing Date, either (i) evidence that procedures for dissolution of ACS
Television, L.L.C. have commenced with the Secretary of State of the state of
its formation or (ii) an executed counterpart of the applicable Security
Documents duly executed by ACS Television, L.L.C.; and


 


(d)           within
5 Business Days following the Closing Date (to the extent not previously
delivered on the Closing Date), a final insurance certificate in form and
substance satisfactory to the Administrative Agent and other evidence requested
by the Administrative Agent that the insurance required by Section 5.07 and the
Security Agreement is in effect.


 


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Section 5.19  Nortel Liens.  The Borrower agrees (i) to use commercially
reasonable efforts to terminate or amend each of the UCC-1 financing statements
in favor of Nortel Networks, Inc. (“Nortel”) that are outstanding on the
Closing Date (the “Nortel Liens”) or take other action satisfactory to
the Administrative Agent, in any case, in a manner that ensures that the Nortel
Liens (x) only cover equipment or other assets that are leased or acquired
after the Closing Date or (y) are junior to the Liens in favor of the
Collateral Agent, and (ii) to ensure that, until the actions specified in
clause (i) above have been taken to the satisfaction of the Administrative
Agent, such Nortel Liens do not secure more than $3,000,000 in payments owed to
Nortel at any one time outstanding.


 


ARTICLE VI



NEGATIVE COVENANTS


 


Until
the Commitments have expired or terminated and the principal of and interest on
each Loan and all fees payable hereunder have been paid in full, and all
Letters of Credit have expired or terminated (or fully collateralized in a
manner reasonably satisfactory to the LC Issuers with cash and/or letters of
credit) and all LC Disbursements have been reimbursed, each of the Parent and
the Borrower covenants and agrees with the Lenders that:


 


Section 6.01  Indebtedness; Certain Equity Securities.


 


(a)           Indebtedness.  The Parent and the Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:


 


(i)            Indebtedness created under the Loan Documents
(including in respect of Incremental Loans);


 


(ii)           Indebtedness in respect of (a) the Senior
Subordinated Notes; provided that the Borrower agrees to call all Senior
Subordinated Notes that are not tendered by the closing date for the tender
offer in connection with the Transactions so that no such Indebtedness is
outstanding 45 days after the Closing Date and (b) the Senior Unsecured Notes
in an aggregate principal amount not to exceed $118,300,000 plus an amount
equal to the amounts held in the Senior Unsecured Notes Account pending
consummation of the tender offer in connection with the Transactions, minus the
principal amount of Senior Unsecured Notes acquired in such tender offer;


 


(iii)          Permitted Additional Indebtedness;


 


(iv)          Indebtedness of the Parent to the Borrower or
of the Borrower to the Parent, of the Parent or the Borrower to any
Wholly-Owned Subsidiary and of any Wholly-Owned Subsidiary (other than a
License Subsidiary) to the Parent or the Borrower or any other Wholly-Owned
Subsidiary, provided that Indebtedness of any Wholly-Owned Subsidiary
that is not a Loan Party to the Borrower or any Wholly-Owned Subsidiary that is
a Loan Party shall be subject to Section 6.04;


 


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(v)           Guarantees (A) by the Borrower of
Indebtedness of the Parent or any Subsidiary and by any Subsidiary of
Indebtedness of the Parent, the Borrower or any other Subsidiary and
(B) by the Parent of any Indebtedness of the Borrower or any Subsidiary, provided
that Guarantees by the Parent, the Borrower or any Subsidiary Loan Party of
Indebtedness of any Subsidiary that is not a Loan Party shall be subject to
Section 6.04;


 


(vi)          Indebtedness in respect of Hedging Agreements
permitted by Section 6.07;


 


(vii)         Indebtedness incurred by the Parent, the
Borrower or any of the Subsidiaries constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business,
including letters of credit in respect of workers’ compensation claims or
self-insurance;


 


(viii)        Indebtedness outstanding on the date hereof
and listed on Schedule 6.01(a)(viii) and any refinancings, refundings,
renewals, extensions or replacements thereof (without shortening the maturity
of, or increasing the principal amount thereof (except to the extent of fees,
premiums and interest on such Indebtedness and payable in connection with such
refinancings, refundings, renewals, extensions or replacements thereof) or
making any such Indebtedness materially more burdensome on the Loan Party party
thereto);


 


(ix)           Indebtedness of a Subsidiary acquired
pursuant to a Permitted Acquisition (or Indebtedness assumed by the Parent, the
Borrower or any Wholly-Owned Subsidiary pursuant to a Permitted Acquisition as
a result of a merger or consolidation or the acquisition of an asset securing
such Indebtedness), so long as (A) such Indebtedness was not incurred in connection
with, or in anticipation or contemplation of, such Permitted Acquisition and
(B) the sum of the principal amount of all such Indebtedness under this clause
(ix) together with all Indebtedness under clause (xv) of this Section 6.01
shall not exceed $30,000,000 for all such Indebtedness at any one time
outstanding and the aggregate principal amount of all Indebtedness under this
clause (ix) shall not exceed $20,000,000 at any one time outstanding;


 


(x)            Indebtedness arising from the honoring by a
bank or other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business, provided
that such Indebtedness is extinguished within five Business Days of its
incurrence;


 


(xi)           without duplication, Indebtedness permitted
as Investments pursuant to Section 6.04;


 


(xii)          Indebtedness with respect to workmen’s
compensation claims, self-insurance, performance bonds, surety bonds, appeal
bonds or other similar bonds required in the ordinary course of business that
do not result in a Default or an Event of Default;


 


(xiii)         Senior unsecured Indebtedness of the
Borrower, which may be guaranteed by the Parent and the Subsidiaries, in an
aggregate principal amount outstanding at any


 


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time not to exceed the sum
of (A) the amount required to refinance in full the Senior Unsecured Notes then
outstanding (including outstanding principal, accrued interest and tender or
call premiums); provided that the proceeds of such issuance are used to
repay, repurchase, redeem or otherwise satisfy the Senior Unsecured Notes in
full within 35 days following such incurrence, and (B) $50,000,000; provided
further that (a) such Indebtedness (and any guarantees thereof) shall on
the date of issuance provide a cash yield not to exceed a market rate of
interest per annum, (b) such Indebtedness shall be unsecured (other than by the
proceeds thereof held in escrow pending a Permitted Acquisition), (c) no
scheduled payments of principal, prepayments, redemptions or sinking fund or
like payments on the principal of such Indebtedness shall be required prior to
the 180th day following the Term Maturity Date (other than any
repayment of proceeds thereof held in escrow pending a Permitted Acquisition),
(d) the terms and conditions of such Indebtedness shall not be more restrictive
on the Parent, the Borrower and the Subsidiaries than the terms and conditions
customarily found in senior or senior subordinated notes of similar issuers
issued under Rule 144A of the Securities Act of 1933 or in a public offering,
in each case as reasonably determined by the Administrative Agent, (e) no
Dividend Suspension Period or Default shall have occurred and be continuing at
the time of incurrence of such Indebtedness or would result therefrom giving
pro forma effect to the use of proceeds of such Indebtedness (including the
refinancing of the Senior Unsecured Notes) and (f) the proceeds of such
Indebtedness are applied as set forth in clause (A) and with respect to such
Indebtedness specified in clause (B), are applied, within 60 days of the
incurrence thereof, (i) to finance one or more Permitted Acquisitions
(including amounts to be held in escrow pending a Permitted Acquisition or to
repay such Indebtedness if the proceeds thereof were held in escrow pending a
Permitted Acquisition that was not consummated), or (ii) to effect mandatory
prepayments pursuant to Section 2.11(b);


 


(xiv)        Indebtedness of the Parent, the Borrower or
any of the Subsidiaries consisting of (A) the financing of insurance premiums
in the ordinary course of business or (B) take-or-pay obligations contained in
supply arrangements entered into in the ordinary course of business; and


 


(xv)         so long as no Default has occurred and is
continuing, additional Indebtedness (whether or not secured) and any
refinancings, refundings, renewals, extensions or replacements thereof (without
shortening the maturity of, or increasing the principal amount thereof (except
to the extent of fees, premiums and interest on such Indebtedness and payable
in connection with such refinancings, refundings, renewals, extensions or
replacements thereof)) provided the aggregate principal amount of all such
Indebtedness when together with all Indebtedness under clause (ix) of this
Section 6.01 shall not exceed $30,000,000 for all such Indebtedness at any
time outstanding and the aggregate principal amount of all Indebtedness under
this clause (xv) shall not exceed $20,000,000 for all such Indebtedness at any
time outstanding.


 


In the event that any item of Indebtedness meets more
than one of the categories set forth above, the Borrower in its sole discretion
may classify such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one or more of such clauses, at its
election.


 


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(b)           Disqualified
Stock.  The Parent and the
Borrower will not, and will not permit any Subsidiary to, issue any preferred
stock or other preferred Equity Interests which would be Disqualified Stock.


 


Section 6.02  Liens.  The Parent and the Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or permit to exist any
Lien on any property or asset now owned or hereafter acquired by it, or assign
or sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:


 


(a)           Liens created under the Loan
Documents;


 


(b)           Permitted Liens;


 


(c)           any Lien on any property or
asset of the Parent, the Borrower or any Subsidiary existing on the date hereof
and set forth in Schedule 1.01-A, provided that (i) such Lien shall
not apply to any other property or asset of the Parent, the Borrower or any
Subsidiary (other than proceeds or replacements thereof) and (ii) such Lien shall
secure only those obligations that it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof (except to the extent of fees, premiums
and interest on such obligations or fees in connection with such extensions,
renewals and replacements thereof);


 


(d)           any Lien existing on any
property or asset prior to the acquisition thereof by the Parent, the Borrower
or any Subsidiary or existing on any property or asset of any Person that
becomes a Subsidiary (other than a License Subsidiary) after the date hereof
prior to the time such Person becomes a Subsidiary, provided that (A)
such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (B) such
Lien shall not apply to any other property or assets of the Parent, the
Borrower or any Subsidiary (other than proceeds or replacements thereof) and
(C) such Lien shall secure only those obligations that it secures on the date
of such acquisition or the date such Person becomes a Subsidiary, as the case
may be and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof except to the extent of fees,
premiums, and interest on such Indebtedness or on refinancings, refundings,
renewals, extensions or replacements thereof;


 


(e)           Liens on assets of the Parent,
the Borrower or a Subsidiary securing Indebtedness permitted by Section
6.01(a)(xv);


 


(f)            any
interest or title of a lessor, lessee, licensor, licensee, sublicensee or
sublessor or sublessee under any lease, license, sublicense or sublease entered
into by the Parent, the Borrower or any other Subsidiary in the ordinary course
of its business and covering only the assets so leased, licensed, sublicensed
or subleased;


 


(g)           Liens arising out of any
conditional sale, title retention, consignment or other similar arrangements
for the sale of goods entered into by the Parent, the Borrower or any of the
Subsidiaries in the ordinary course of business to the extent such Liens do


 


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not
attach to any assets other than the goods subject to such arrangements (and
proceeds thereof);


 


(h)           Liens (i) incurred in the
ordinary course of business in connection with the purchase or shipping of
goods or assets (or the related assets and proceeds thereof), which Liens are
in favor of the seller or shipper of such goods or assets and only attach to
such goods or assets and (ii) 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;


 


(i)            Liens
in favor of collecting banks having a right of setoff, revocation, refund or
chargeback with respect to money or instruments of the Parent, the Borrower or
any of the Subsidiaries on deposits with or in possession of such banks, other
than those relating to Indebtedness;


 


(j)            Liens
securing insurance premium financing arrangements;


 


(k)           Liens on the Crest Assets in
favor of the seller of such assets to the Parent and its Subsidiaries and Liens
in favor of any subsequent purchaser of the Crest Assets in connection with the
transaction to purchase such assets.


 


(l)            Liens
on amounts being held in escrow pending a Permitted Acquisition; and


 


(m)          Liens not otherwise permitted by
this Section so long as neither (i) the aggregate outstanding principal amount
of the obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Parent, the Borrower and its Subsidiaries) the amounts
specified in Section 6.01(a)(xv) at any one time.


 


Section 6.03  Fundamental Changes; Lines of Business.


 


(a)           Fundamental
Changes.  Neither the Parent
nor the Borrower will, nor will they permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it, or liquidate or dissolve, except that, if at the time
thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Subsidiary (other than a License Subsidiary)
may merge into the Borrower so long as the Borrower is the surviving entity,
and any Person (other than a License Subsidiary) may merge into or consolidate
with a Subsidiary (other than a License Subsidiary) in connection with a
Permitted Acquisition so long as the surviving entity is a Subsidiary and (if
any party to such merger or consolidation is a Subsidiary Loan Party) the
surviving entity is a Subsidiary Loan Party, (ii) any Subsidiary may merge into
or consolidate with any other Subsidiary and, if either such Subsidiary is a
Subsidiary Loan Party, the surviving entity is a Subsidiary Loan Party, (iii)
any Subsidiary may merge into or consolidate with any other Person or permit
any other Person to merge into or consolidate with it in any sale or other
disposition permitted under Section 6.05, and (iv) any Subsidiary (other than a
License Subsidiary (excluding ACS Television License Sub, Inc.)) may liquidate
or dissolve if the Borrower determines in its good


 


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faith business judgment that
such liquidation or dissolution is in the best interests of the Borrower and is
not materially disadvantageous to the Lenders, provided that any such
merger or consolidation involving a Person that is not a Wholly Owned
Subsidiary immediately prior to such merger or consolidation shall not be
permitted unless also permitted by Sections 6.04 and 6.08.


 


(b)           Lines
of Business.  (i) The Borrower
will not, and will not permit any of the Subsidiaries to, engage to any
material extent (determined on a consolidated basis) in any business other than
businesses of the type conducted (or proposed or contemplated to be conducted
and identified to the Administrative Agent) by the Borrower and the
Subsidiaries on the date hereof and businesses reasonably related, incidental
or ancillary thereto.


 


(ii)           No License Subsidiary will engage in any business
or activity other than holding the applicable Operating License and activities
incidental thereto.


 


(iii)          No License Subsidiary will sell, transfer,
lease or otherwise dispose of any Operating License or any Authorization
material to the business of the Loan Parties.


 


Section 6.04  Investments, Loans, Advances, Guarantees
and Acquisitions.  The Parent
and the Borrower will not, and will not permit any of the Subsidiaries to make
or permit to exist any Investment except:


 


(a)           Permitted Investments;


 


(b)           Investments by the Parent, the
Borrower and the Subsidiaries in Equity Interests in their respective
subsidiaries, provided that any such Equity Interests held by a Loan
Party shall be pledged to the Administrative Agent as collateral security for
the obligations of the Loan Parties under the Loan Documents pursuant to the
Security Documents (subject to the limitations applicable to Foreign Subsidiary
Equity Interests referred to in Section 4.01(f)(i));


 


(c)           loans or advances made by the
Parent, the Borrower or any Subsidiary Loan Party to the Parent, the Borrower
or any Subsidiary Loan Party, provided that any such loans and advances
made by a Loan Party shall be evidenced by a promissory note pledged to the
Administrative Agent as collateral security for the obligations of the Loan
Parties under the Loan Documents pursuant to the Security Documents;


 


(d)           (i) Guarantees constituting
Indebtedness permitted by Section 6.01, provided that no Subsidiary
shall guarantee Permitted Additional Indebtedness unless, if applicable, such
guaranty is subordinated to the Obligations on the same terms as such
Indebtedness and (ii) Guarantees by the Parent, the Borrower or any
Subsidiary of the obligations (other than Indebtedness) of the Parent, the
Borrower or any Subsidiary;


 


(e)           Investments received in
connection with the bankruptcy or reorganization of, or settlement of
delinquent accounts and disputes with, customers and suppliers, in each case in
the ordinary course of business;


 


(f)            Permitted
Acquisitions, provided that (i) the aggregate Purchase Prices of all
Permitted Acquisitions under this clause (f) shall not exceed $250,000,000 and
(ii) if, on the


 


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date of any Permitted
Acquisition, the aggregate Purchase Price of such Permitted Acquisition,
together with the aggregate Purchase Prices of all prior Permitted Acquisitions
occurring after the Closing Date, shall exceed $150,000,000, then such excess
amount as at such date shall not be greater than the Available Equity Issuance
Amounts as at such date, and at the time of such Permitted Acquisition, the
Borrower shall deliver a certificate of a Financial Officer stating the portion
of the Purchase Price of such Permitted Acquisition being made from the
Available Equity Issuance Amounts, and setting forth a calculation of the
Available Equity Issuance Amount immediately before and immediately after such
Permitted Acquisition;


 


(g)           loans and advances to employees,
directors or consultants in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses and temporary
advances to employees or directors in respect of income taxes related to the
exercise of stock options) to the extent permitted under the Sarbanes-Oxley Act
of 2002, as amended, in an aggregate principal amount not to exceed $5,000,000
at any one time outstanding;


 


(h)           Investments by the Parent, the
Borrower and the Subsidiaries in Hedging Agreements permitted under Section
6.07;


 


(i)            extensions
of trade credit or the holding of receivables owing to the Parent, the Borrower
or any Subsidiary if created or acquired in the ordinary course of business;


 


(j)            payroll,
travel and similar advances to cover matters that are expected at the time of
such advances ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business;


 


(k)           Investments that are financed or
acquired with Equity Interests of the Parent;


 


(l)            Investments
set forth on Schedule 6.04 (and other investments received in respect thereof
without the payment of additional cash consideration);


 


(m)          Investments made with Net
Proceeds to the extent permitted to be so applied or reinvested as set forth in
the definition of Prepayment Event and as contemplated by Section 2.11(b);


 


(n)           Investments received as
consideration in connection with sales, transfers or other dispositions
permitted under this Agreement;


 


(o)           so long as no Default or
Dividend Suspension Period has occurred and is continuing, other Investments,
the amount of which is deducted from Available Cash for the Relevant Period in
which made pursuant to clause (iv) of the definition of such term in Section
1.01, in an aggregate amount not to exceed the amount of Cumulative
Distributable Cash at such time, provided that, after June 30, 2005, no
Investment shall be made under this clause (o) prior to the date 5 days after
the Borrower shall have delivered to the Administrative Agent a certificate of
a Financial Officer stating the amount of such Investment to be made pursuant
to this clause (o) and demonstrating that the sum of (A) Cumulative
Distributable Cash through the


 


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most
recent fiscal quarter as of which financial statements have been delivered to
the Lenders under Section 5.01 minus (B) the amount of such
Investment, is greater than zero;


 


(p)                                 so
long as no Default or Dividend Suspension Period has occurred and is continuing,
other Investments in an aggregate amount not to exceed the Available
Equity Issuance Amount at such time, provided that at the time of any
Investment under this clause (p), the Borrower shall deliver a certificate of a
Financial Officer stating the amount of the Investment being made pursuant to
this clause (p) and setting forth a calculation of the Available Equity
Issuance Amount immediately before and immediately after such Investment; and


 


(q)                                 Investments
in the Crest Assets.


 


Section 6.05  Asset Sales.  The Parent and the Borrower will not, and
will not permit any of the Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest owned by it, nor will the
Parent or the Borrower permit any of the Subsidiaries to issue any additional
Equity Interest in such Subsidiary, except:


 


(a)                                  sales,
transfers, leases or other dispositions of inventory, used, surplus or obsolete
equipment, the lease or sublease of real property or equipment and sales,
transfers or other dispositions of cash and Permitted Investments in the
ordinary course of business;


 


(b)                                 sales,
transfers, leases or other dispositions of telecommunications transmission
capacity in the ordinary course of business that do not involve the transfer of
ownership of the underlying means of transmission;


 


(c)                                  sales,
transfers, leases and dispositions to the Parent, the Borrower or another Loan
Party;


 


(d)                                 sales,
transfers, leases and dispositions permitted by clauses (i), (ii) and (iv) of Section 6.03(a);


 


(e)                                  the
transfer or other disposition of Permitted Investments in the ordinary course
of business;


 


(f)                                    the
license or sublicense of patents, trademarks, copyrights, know-how or other
intellectual property to third Persons in the ordinary course of business
consistent with past practice;


 


(g)                                 the
sale, transfer, lease or other disposition of property, plant or equipment to
the extent that such property, plant or equipment is exchanged for, or for
credit against the purchase price of, other property, plant or equipment used
or useful in a business of the Loan Parties or the proceeds of such sale,
transfer or other disposition are reasonably promptly applied to the purchase
price of such property, plant or equipment used or useful in the business
operations of the Loan Parties;


 


(h)                                 (A)
the cancellation or termination of obligations (including, without limitation,
any promissory notes evidencing such obligations) of Crest Communications
L.L.C.


 


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and its Affiliates
to the Parent and its subsidiaries and (B) the sale, transfer, lease or other
disposition of the Crest Assets; and


 


(i)                                     so
long as no Default has occurred and is continuing, sales, transfers, leases and
other dispositions of assets (other than sales of less than 100% of the Equity
Interests in a Subsidiary) that are not permitted by any other clause of this
Section, provided that (i) the aggregate fair market value of all assets
sold, transferred or otherwise disposed of in reliance upon this clause (i)
shall not exceed $25,000,000 during any fiscal year of the Borrower and
$75,000,000 in the aggregate during the term of this Agreement, and
(ii) assets with an aggregate book value of less than $250,000 sold,
transferred or otherwise disposed of in a single transaction or a series of
related transactions shall not be included in the determination of the
aggregate fair market value of assets sold, transferred or otherwise disposed
of in reliance upon this clause (i);


 


provided
that all sales, transfers, leases and other dispositions permitted by clause
(i) shall be made for fair value and shall be made for at least 50% cash
consideration.


 


To the extent the Required Lenders waive the
provisions of this Section 6.05 with respect to the sale, transfer, lease
or other disposition of any Collateral or any Subsidiary, or any Collateral or
any Subsidiary is sold, transferred, leased or otherwise disposed of as
permitted by this Section 6.05, (i) such Collateral (unless transferred to
a Loan Party) shall, subject to Section 9.02(b), (except as otherwise
provided above) be sold, transferred, leased or otherwise disposed of free and
clear of the Liens created by the Loan Documents and (ii) such Subsidiary shall
be released from its obligations under the Loan Documents and, in each case,
the Administrative Agent shall take such actions (including, without
limitation, directing any collateral agent to take such actions) as are
appropriate in connection therewith to release any such Liens or obligations.


 


Section 6.06  Sale and
Leaseback Transactions.  The Parent and the Borrower will not, and
will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except for (a) any such sale or transfer of any fixed
or capital assets that is made for cash consideration in an amount not less
than the cost of such fixed or capital asset and is consummated within 90 days
after the Parent, the Borrower or such Subsidiary acquires or completes the construction
of such fixed or capital asset, (b) any other sale and leaseback of any
fixed or capital assets to the extent that (i) all Indebtedness incurred
in connection with such sale is otherwise permitted by Section 6.01,
(ii) any Liens created on such assets are otherwise permitted by Section 6.02,
and (iii) such asset sale is in compliance with Section 6.05, and
(c) any such transactions related to the Crest Assets.


 


Section 6.07  Hedging
Agreements.  The Parent and the Borrower will not, and
will not permit any of the Subsidiaries to, enter into any Hedging Agreement,
other than (a) Hedging Agreements entered into pursuant to Section 5.15
and (b) Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Parent, the Borrower or any Subsidiary is
exposed in the conduct of its business or the management of its liabilities.


 


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Section 6.08 
Restricted Payments; Certain Payments of Indebtedness.


 


(a)                                  Restricted
Payments in respect of Equity. 
Neither the Parent nor the Borrower will, nor will they permit any
Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except


 


(i)                                     the Parent, the Borrower and any Subsidiary may
declare and pay dividends with respect to its capital stock payable solely in
additional shares of its common stock;


 


(ii)                                  the Borrower and the Subsidiaries may declare
and pay dividends ratably with respect to their capital stock;


 


(iii)                               as long as no Dividend Suspension Period
shall have commenced and be continuing and no Default shall have occurred and
be continuing, the Parent may pay dividends on its common stock, repurchase its
common stock and make other Restricted Payments in an amount not exceeding
Cumulative Distributable Cash of the Loan Parties calculated as of the date of
such Restricted Payment, provided that, after June 30, 2005, no
Restricted Payment shall be made under this clause (iii) prior to the date 20
days after the Borrower shall have delivered to the Administrative Agent a
certificate of a Financial Officer stating the amount of such Restricted
Payment to be made pursuant to this clause (iii) and demonstrating that the sum
of (A) Cumulative Distributable Cash through the most recent fiscal quarter as
of which financial statements have been delivered to the Lenders under Section 5.01
minus (B) the amount of such Restricted Payment, is greater than zero;


 


(iv)                              as long as no Default shall have occurred and
be continuing, the Parent may pay dividends on its common stock, repurchase its
common stock and make other Restricted Payments up to but not exceeding the
Available Equity Issuance Amount as of the date of such Restricted Payment, provided
that at the time of any Restricted Payment under this clause (iv), the Borrower
shall deliver a certificate of a Financial Officer stating the amount of the
Restricted Payment being made pursuant to this clause (iv) and setting forth a
calculation of the Available Equity Issuance Amount immediately before and
immediately after such Restricted Payment;


 


(v)                                 any purchase, repurchase, retirement,
defeasance or other acquisition or retirement for value of Equity Interests of
the Parent made by exchange for, or out of the proceeds of the substantially
concurrent sale of, Equity Interests of the Parent (other than Disqualified
Stock and other than Equity Interests issued or sold to the Borrower or a
Subsidiary or an employee stock ownership plan or other trust established by
the Borrower or any of the Subsidiaries);


 


(vi)                              provided that no Default or Dividend
Suspension Period has occurred and is continuing, Restricted Payments with the
proceeds of, and to the extent permitted by clause (f)(iv) of the definition
of, Permitted Additional Indebtedness; and


 


(vii)                           any Subsidiary that is not a Wholly-Owned
Subsidiary may pay cash dividends to its shareholders, members or partners
generally, so long as the Parent, the


 


88





















 


Borrower
or the Subsidiary that owns the Equity Interests in such Subsidiary paying such
dividends receives at least its proportionate share thereof.


 


(b)                                 Payments
in respect of Indebtedness. 
Neither the Parent nor the Borrower will, nor will they permit any
Subsidiary to, make or agree to make, directly or indirectly, any payment or
other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness for borrowed money, or
any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any Indebtedness for borrowed money, except:


 


(i)                                     payments of Indebtedness created under the Loan
Documents;


 


(ii)                                  payments of regularly scheduled interest and
principal payments as and when due in respect of any Indebtedness, other than
payments in respect of Permitted Additional Indebtedness and the Senior
Subordinated Notes prohibited by any subordination provisions of the documents
governing or evidencing such Indebtedness;


 


(iii)                               refinancings (including by redemption, tender,
acquisition, defeasances, discharge or otherwise) of Indebtedness to the extent
permitted by Section 6.01;


 


(iv)                              payment of secured Indebtedness that becomes due as
a result of the voluntary sale or transfer of the property or assets securing
such Indebtedness;


 


(v)                                 payment of Indebtedness permitted under clauses
(iv), (viii), (ix), (xiii) and (xv) of Section 6.01(a);


 


(vi)                              provided that no Default or Dividend
Suspension Period has occurred and is continuing, determined on a pro forma
basis after giving effect to the application of proceeds of Permitted
Additional Indebtedness or senior unsecured Indebtedness, payment of the Senior
Unsecured Notes with the proceeds of Permitted Additional Indebtedness and with
the proceeds of senior unsecured Indebtedness to the extent permitted under Section 6.01(xiii);


 


(vii)                           (A) payment for the repurchase, redemption,
retirement or cancellation of Senior Subordinated Notes and Senior Unsecured
Notes with funds held in the collateral accounts on the Closing Date in
connection with the Transactions, and (B) provided that no Default or Dividend
Suspension Period has occurred and is continuing additional payments for the
repurchase, redemption, retirement or cancellation of the Senior Unsecured
Notes that were not tendered in connection with the Transactions and
Indebtedness of the Parent, the Borrower and the Subsidiaries in an amount not
to exceed the amount of Cumulative Distributable Cash of the Parent, the
Borrower and the Subsidiaries calculated as of the date of such payment (provided
that, after June 30, 2005, no such payment from Cumulative Distributable
Cash shall be made under this clause (vii) prior to the date 5 days after the
Borrower shall have delivered to the Administrative Agent a certificate of a
Financial Officer stating the amount of such payment to be made pursuant to
this clause (vii) and demonstrating that the sum of (1) Cumulative
Distributable Cash through the most recent fiscal quarter as of which financial
statements


 


89





















 


have been delivered to the Lenders under Section 5.01 minus
(2) the amount of such payment, is greater than zero); and


 


(viii)                        provided no Default has occurred and is
continuing, payment for the repurchase, redemption, retirement or cancellation
of Senior Unsecured Notes not tendered in connection with the Transactions and
additional payments for the repurchase, redemption, retirement or cancellation
of Indebtedness of the Parent, the Borrower and the Subsidiaries in an amount
not to exceed the Available Equity Issuance Amount calculated as of the date of
such payment; provided that and at the time of such payment the Borrower
shall have delivered to the Administrative Agent a certificate of a Financial
Officer stating the amount of such payment to be made from the Available Equity
Issuance Amount, and setting forth a calculation of the Available Equity
Issuance Amount immediately before and immediately after such payment.


 


Section 6.09  Transactions with
Affiliates.  Neither the Parent nor the Borrower will, nor
will they permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except


 


(a)                                  transactions in
the ordinary course of business and on terms and conditions not less favorable to
the Parent, the Borrower or such Subsidiary than could be obtained on an arm’s-length
basis from unrelated third parties;


 


(b)                                 transactions
between or among the Parent, the Borrower and the Subsidiaries;


 


(c)                                  any
Restricted Payment permitted by Section 6.08;


 


(d)                                 any
issuance by the Parent of securities or by the Borrower of debt securities, or
other payments, awards or grants in cash, securities (other than, in respect of
the Borrower, Equity Interests) or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans approved by
the Board of Directors of the Borrower;


 


(e)                                  the
grant of stock options or similar rights in respect of Equity Interests in the
Parent to employees and directors of the Parent, the Borrower or the
Subsidiaries pursuant to plans approved by the Board of Directors of the
Parent, the Borrower or such Subsidiaries;


 


(f)                                    customary
indemnification and insurance arrangements in favor of officers, directors,
employees and consultants of the Parent, the Borrower or any Subsidiary;


 


(g)                                 the
existence of, or the performance by the Parent, the Borrower or any Subsidiary
of the obligations under the terms of, any stockholders agreements (including
any registration rights agreement or purchase agreement related thereto),
service agreements and other agreements with Affiliates to which it is a party
as of the Closing Date, which agreements are listed on Schedule 6.09, as
such agreements maybe amended on terms reasonably satisfactory to the
Administrative Agent from time to time pursuant to the terms thereof, provided,
however,


 


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that the
terms of any such amendment are no less favorable to the Lenders than the terms
of any such agreements in effect as of the Closing Date;


 


(h)                                 the
issuance of Equity Interests (other than Disqualified Stock) of the Parent for
cash to the Sponsor or senior management of the Parent or the Borrower;


 


(i)                                     the
payments by the Parent, the Borrower or the Subsidiaries to Sponsor for any
financial advisory, financing, underwriting or other placement services or in
respect of other investment banking activities including with respect to
acquisitions or divestitures that have been approved by the independent members
of the Board of Directors of such Loan Party; and


 


(j)                                     transactions to
the extent permitted under Sections 6.01 or 6.04.


 


Section 6.10  Restrictive
Agreements.  Neither the Parent nor the Borrower will, nor
will they permit any Subsidiary to, directly or indirectly, enter into, incur
or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon (a) the ability of the Parent, the Borrower or
any Subsidiary to create, incur or permit to exist any Lien securing the
Obligations upon any of its property or assets or (b) the ability of any
Subsidiary to pay dividends or other distributions to the Loan Parties with
respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary Loan Party or to Guarantee
Obligations of the Borrower, provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by any Loan Document,
Permitted Additional Indebtedness, permitted senior unsecured Indebtedness in
accordance with Section 6.01(a)(xiii), Senior Subordinated Debt Document
or Senior Unsecured Debt Document, provided that the terms therein are
no more restrictive to the applicable Loan Party party thereto than those
contained herein, taken as a whole, and in any event shall permit Liens
securing the Obligations in favor of the Administrative Agent, (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.10 (but shall apply to any extension or
renewal of, or any amendment or modification, in each case, expanding the scope
of, any such restriction on condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements relating
to the sale of a Subsidiary pending such sale, provided that such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall
not apply to restrictions or conditions imposed by any agreement relating to
secured Indebtedness or Liens permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such Indebtedness
or secured by such Liens, (v) clause (a) of the foregoing shall not apply
to customary provisions in leases, licenses and other contracts restricting the
assignment, subletting or sublicensing thereof, (vi) clause (a) of the
foregoing shall not apply to restrictions on cash or other deposits imposed by
customers under contracts entered into in the ordinary course of business on
the parties to such contracts, (vii) clause (a) of the foregoing shall not
apply to any encumbrance or restriction on the assets of or equity in any joint
venture that is contained in any joint venture agreement or other similar
agreement with respect to such joint venture that was entered into in the
ordinary course of business, (viii) clause (a) of the foregoing shall not
apply to agreements evidencing Liens permitted under subclauses (d) or (e) of Section 6.02,
(ix) the foregoing shall not apply to any agreement or instrument
governing Indebtedness permitted under Section 6.01(a)(ix), which
encumbrance or restriction is not applicable to any Person or


 


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the properties or assets of any Person, other
than the Person or the properties or assets of the Person acquired pursuant to
the respective Permitted Acquisition and so long as the respective encumbrances
or restrictions were not created (or made more restrictive) in connection with
or in anticipation of the respective Permitted Acquisition, (x) the
foregoing shall not apply to agreements containing restrictions applicable to
any joint venture that is a Subsidiary existing at the time of the acquisition
thereof as a result of an Investment pursuant to Section 6.04, and
(xi) the foregoing shall not apply to agreements containing restrictions
on the transfer of any asset or Subsidiary pending the close of the sale of
such asset or Subsidiary so long as such sale is permitted under this
Agreement.


 


Section 6.11  Amendment of
Material Documents.  Neither the Parent nor the Borrower will, nor
will they permit any Subsidiary to, amend, modify or waive any of its rights
under (a) its certificate of incorporation, by-laws or other organizational
documents, or (b) any Subordinated Debt Document or any Senior Unsecured Debt
Document or (c) any other Material Indebtedness (including any document
governing or evidencing Permitted Additional Indebtedness), in each case in any
manner that would impair in any material respect the value of the interests or
rights of the Borrower thereunder or that would impair in any material respect
the rights or interests of the Administrative Agent or any Lender.


 


Section 6.12 
Financial
Covenants.


 


(a)                                  Fixed
Charges Coverage Ratio. 
The Borrower will not permit the Fixed Charges Coverage Ratio of the
Borrower as of the last day of any fiscal quarter to be less than 2.50 to 1 for
each fiscal quarter following the Closing Date until the fiscal quarter ended December 31,
2006, and thereafter 2.75 to 1.


 


(b)                                 Total
Leverage Ratio.  The Borrower will
not permit the Total Leverage Ratio as of the last day of any fiscal quarter to
exceed 5.25 to 1.


 


(c)                                  Senior
Secured Leverage Ratio. 
The Borrower will not permit the Senior Secured Leverage Ratio as of the
last day of any fiscal quarter to exceed 4.25 to 1.


 


Section 6.13  Fiscal Year.  The Borrower will not, and will not permit
the Subsidiaries to, change the financial reporting convention by which the
Borrower and the Subsidiaries determine the dates on which their fiscal years
and fiscal quarters will end (except as may be necessary to cause the fiscal
year of any such Subsidiary to end on December 31), and each fiscal year
(other than Subsidiaries acquired after the date hereof pending any such
change) shall end on December 31.


 


ARTICLE VII



EVENTS OF DEFAULT


 


If any of the following events (“Events of Default”)
shall occur:


 


(a)                                  the
Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become


 


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due and
payable, whether at the due date thereof or at a date fixed for prepayment
thereof or otherwise;


 


(b)                                 the
Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable
under this Agreement or any other Loan Document, when and as the same shall
become due and payable, and such failure shall continue unremedied for a period
of three Business Days;


 


(c)                                  any
representation or warranty made or deemed made by or on behalf of the Parent or
the Borrower or any Subsidiary in or in connection with any Loan Document or
any amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with any Loan Document or any amendment or modification thereof or
waiver thereunder, shall prove to have been incorrect in any material respect
on or as of the date made or deemed made;


 


(d)                                 the
Parent or the Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Section 5.02(a), 5.04 (solely with respect to
the existence of Parent or the Borrower) or 5.14(c) or in Article VI;


 


(e)                                  any
Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause
(a), (b) or (d) of this Article), and such failure shall continue unremedied
for a period of 30 days after notice thereof from the Administrative Agent to
the Borrower (which notice will be promptly given at the request of the
Required Lenders);


 


(f)                                    the
Parent or the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount, but after giving
effect to any applicable grace period) in respect of any Material Indebtedness,
when and as the same shall become due and payable;


 


(g)                                 any
event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (after giving
effect to any grace period) the holder or holders of any Material Indebtedness
or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity, provided
that this clause (g) shall not apply to secured Indebtedness that becomes due
as a result of the voluntary sale or transfer of property or assets securing
such Indebtedness;


 


(h)                                 an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect seeking (i) liquidation,
reorganization or other relief in respect of the Parent, the Borrower or any
Material Subsidiary or its debts, or of a substantial part of its assets or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Parent, the Borrower or any Material
Subsidiary or for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an order or
decree approving or ordering any of the foregoing shall be entered;


 


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(i)                                     the
Parent, the Borrower or any Material Subsidiary shall (1) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (2) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (3) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Parent, the Borrower or any Material
Subsidiary or for a substantial part of its assets, (4) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (5) make a general assignment for the benefit of creditors or (6)
take any action for the purpose of effecting any of the foregoing;


 


(j)                                     the
Parent, the Borrower or any Material Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;


 


(k)                                  (i)
one or more judgments for the payment of money in an aggregate amount in excess
of $10,000,000 (after giving effect to insurance payments, if any) shall be
rendered against the Parent, the Borrower, any Material Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any
action shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Parent, the Borrower or any Material Subsidiary to enforce any
such judgment;


 


(ii)                                  any non-monetary judgment or order shall be
rendered against the Parent, the Borrower or any Subsidiary that could be
reasonably likely to have a Material Adverse Effect, and there shall be any
period of 30 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;


 


(l)                                     an
ERISA Event shall have occurred that, when taken together with all other ERISA
Events for which liability of the Parent, the Borrower or the Subsidiaries is
reasonably expected to occur, could reasonably be expected to result in
liability of the Parent, the Borrower and the Subsidiaries in an aggregate
amount exceeding $10,000,000 for all periods;


 


(m)                               (i)
any Liens purported to be created under any Security Document shall cease to
be, or shall be asserted by any Loan Party not to be, valid and perfected Liens
on Collateral having a value in excess of $10,000,000, with the priority
required by the applicable Security Documents, except as a result of the sale or
other disposition of the applicable Collateral in a transaction permitted under
the Loan Documents, (ii) the Obligations of the Borrower or the obligations of
the Parent pursuant to the Parent Guarantee Agreement or the obligations of any
Subsidiary Loan Party pursuant to a Subsidiary Guarantee Agreement shall cease
to be, or shall be asserted by any Loan Party not to be, legal, valid and
binding obligations enforceable in accordance with terms or (iii) the
Obligations of the Borrower or the obligations of the Parent pursuant to the
Parent Guarantee Agreement or the obligations of any Subsidiary Loan Party
pursuant to a Subsidiary Guarantee Agreement shall cease to constitute senior
indebtedness under the subordination provisions of any document or instrument
evidencing any permitted subordinated Indebtedness or such subordination
provisions shall be invalidated or otherwise


 


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cease to be
legal, valid and binding obligations of the parties thereto, enforceable in
accordance with their terms;


 


(n)                                 a
Change in Control shall occur; or


 


(o)                                 any of
the Operating Licenses or Authorizations shall have been (i) revoked,
rescinded, suspended, modified in an adverse manner or not renewed in the
ordinary course for a full term or (ii) subject to any decision by a
Governmental Authority that designates a hearing with respect to any
applications for renewal of any of the Operating Licenses or Authorizations or
that could result in such Governmental Authority taking any of the actions
described in clause (i) above, and such decision or such revocation,
rescission, suspension, modification or nonrenewal (1) has, or could reasonably
be expected to have, a Material Adverse Effect, or (2) adversely affects the
legal or character qualifications of the Parent, the Borrower or any of the
Subsidiaries to hold any of the Operating Licenses or Authorizations;


 


then, and in every such event (other than an event
with respect to the Borrower described in clause (h) or (i) of this Article),
and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by
notice to the Borrower, take either or both of the following actions, at the
same or different times:  (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately,
and/or (ii) declare the Loans then outstanding to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable
may thereafter be declared to be due and payable), and thereupon the principal
of the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower
and/or require cash collateralization of the Letters of Credit in accordance
with Section 2.05(j); and in case of any event with respect to the
Borrower described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.


 


ARTICLE VIII



THE ADMINISTRATIVE AGENT


 


Each of the Lenders and each LC Issuer hereby
irrevocably appoints CIBC (and any successor Administrative Agent appointed as
provided herein) as its agent and authorizes CIBC (and any successor
Administrative Agent appointed as provided herein) to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms of the Loan Documents, together with such actions and powers as
are reasonably incidental thereto.  For
purposes of this Article VIII, all references to the Administrative Agent
are deemed to include the Collateral Agent.


 


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The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as
any other Lender and may exercise the same as though it were not the
Administrative Agent, and such Person and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with the
Borrower or any Subsidiary or any Affiliate of any of the foregoing as if it were
not the Administrative Agent hereunder.


 


The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the
foregoing,


 


(a)                                  the
Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing,


 


(b)                                 the
Administrative Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), provided that the Administrative Agent
shall not be required to take any action that, in its opinion or the opinion of
its counsel, may expose the Administrative Agent to liability or that is
contrary to any Loan Document or applicable law; and


 


(c)                                  except
as expressly set forth in the Loan Documents, the Administrative Agent shall
not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of the Subsidiaries
that is communicated to or obtained by the Person serving as Administrative
Agent or any of its Affiliates in any capacity.


 


The Administrative Agent
shall not be liable for any action taken or not taken by it with the consent or
at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary under the circumstances as provided in Section 9.02),
or as the Administrative Agent shall in good faith believe to be necessary
under the circumstances, or in the absence of its own gross negligence or
willful misconduct.  The Administrative
Agent shall not be deemed to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by Parent, the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or
in connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any
Loan Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


The Administrative Agent shall be entitled to rely
upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or
other writing (including any telephone or electronic message, internet or
intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent


 


96





















 


or
otherwise authenticated by the proper Person. 
The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that
by its terms must be fulfilled to the satisfaction of a Lender or an LC Issuer,
the Administrative Agent may presume that such condition is satisfactory to
such Lender or such LC Issuer unless the Administrative Agent shall have
received notice to the contrary from such Lender or such LC Issuer prior to the
making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with
legal counsel (who may be counsel for the Loan Parties), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


 


The Administrative Agent may perform any of and all
its duties and exercise its rights and powers by or through any one or more
sub-agents appointed by the Administrative Agent.  The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. 
The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and
any such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.


 


Subject to the appointment and acceptance of a
successor Administrative Agent as provided in this paragraph, the
Administrative Agent may resign at any time by notifying the Lenders, each LC
Issuer and the Borrower.  Upon any such
resignation, the Required Lenders shall have the right, subject to the Borrower’s
consent (not to be unreasonably withheld or delayed), to appoint a
successor.  If no successor shall have
been so appointed by the Required Lenders (with the Borrower’s consent (not to
be unreasonably withheld or delayed)) and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its resignation,
then the retiring Administrative Agent may, on behalf of the Lenders and each
LC Issuer, appoint a successor Administrative Agent which shall be a bank with
an office in New York, New York, or an Affiliate of any such bank.  Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder.  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the Administrative
Agent’s resignation hereunder, the provisions of this Article and Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as
Administrative Agent.


 


Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.  Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and


 


97





















 


information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished
hereunder or thereunder.


 


Notwithstanding anything herein to the contrary, the
Co-Lead Arrangers and Joint Book Managers, the Syndication Agent and the
Documentation Agent named on the cover page of this Agreement shall have no
duties or responsibilities hereunder except in their respective capacity, if
any, as a Lender.


 


ARTICLE IX


 


MISCELLANEOUS


 


Section 9.01 
Notices.


 


(a)                                  Notices
Generally.  Except in the case
of notices and other communications expressly permitted to be given by
telephone (and except as provided in paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows:


 


(i)                                     if to the Borrower or the Parent, to it at
600 Telephone Avenue, MS 7, Anchorage, AK 99503, Attention of Leonard
Steinberg, General Counsel (Telecopy No. (907) 297-3153)
and David Wilson, Chief Financial Officer (Telecopy No. (907)
564-8443);


 


(ii)                                  if to the Administrative Agent, to Canadian
Imperial Bank of Commerce, 300 Madison Avenue, New York, New York  10017, Attention of Agency Services (Telecopy
No. (212) 856-3763); and


 


(iii)                               if to any Lender or LC Issuer, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire.


 


Notices sent by hand or overnight courier service, or
mailed by certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given when
sent (except that, if not given during normal business hours for the recipient,
shall be deemed to have been given at the opening of business on the next
business day for the recipient).  Notices
delivered through electronic communications to the extent provided in paragraph
(b) below, shall be effective as provided in said paragraph (b).


 


(b)                                 Electronic
Communications.  Notices and other
communications to the Lenders and the LC Issuers hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or
any LC Issuer pursuant to Article II if such Lender or such LC Issuer, as
applicable, has notified the Administrative Agent that it is incapable of
receiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may,
in


 


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its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or communications.


 


Unless the Administrative Agent otherwise prescribes,
(i) notices and other communications sent to an e-mail address shall be deemed
received upon the sender’s receipt of an acknowledgement from the intended
recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such
notice or other communication is not sent during the normal business hours of
the recipient, such notice or communication shall be deemed to have been sent
at the opening of business on the next business day for the recipient, and (ii)
notices or communications posted to an Internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


(c)                                  Change
of Address, Etc.  Any party hereto
may change its address, telecopier number or e-mail
address for notices and other communications hereunder by notice to the other
parties hereto.


 


(d)                                 Documents
to be Delivered under Section 5.01.  For so long as an intralinks or equivalent
website is available to each of the Lenders hereunder, the Borrower may satisfy
its obligation to deliver documents under Section 5.01 by delivering one
hard copy thereof to the Administrative Agent and an electronic copy for
posting by the Administrative Agent on intralinks or such equivalent website, provided
that the Administrative Agent shall have no responsibility to maintain access
to intralinks or an equivalent website.


 


Section 9.02 
Waivers,
Amendments.


 


(a)                                  No
Deemed Waivers; Remedies Cumulative.  No failure or delay by the Administrative
Agent, any LC Issuer or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment
or discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Administrative
Agent, the LC Issuers and the Lenders hereunder and under the other Loan
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have.  No waiver of
any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given.  Without limiting the generality
of the foregoing, the making of a Loan or the issuance of a Letter of Credit
shall not be construed as a waiver of any Default, regardless of whether the
Administrative Agent, any LC Issuer or any Lender may have had notice or
knowledge of such Default at the time.


 


(b)                                 Amendments.  Neither this Agreement nor any other Loan
Document nor any provision hereof or thereof may be waived, amended or modified
except, in the case of this Agreement, pursuant to an agreement or agreements
in writing entered into by the Parent, the


 


99





















 


Borrower
and the Required Lenders or, in the case of this Agreement or any other Loan
Document, pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties that are parties
thereto, in each case with the consent of the Required Lenders, provided
that no such agreement shall:


 


(i)                                     increase the Commitment (except as provided in Section 2.01(c)
with respect to Incremental Loans) of any Lender without the written consent of
such Lender,


 


(ii)                                  reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon (except for interest
arising under Section 2.13(c)), or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,


 


(iii)                               postpone the date of any scheduled payment
(excluding any payments pursuant to Section 2.11) of the principal amount
of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such scheduled payment,
or postpone the scheduled date of expiration of any Commitment, without the
written consent of each Lender affected thereby,


 


(iv)                              change Section 2.18(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender affected thereby,


 


(v)                                 change any of the provisions of this Section or
percentage set forth in the definition of the term “Required Lenders” or any
other provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without
the written consent of each Lender (or each Lender of such Class, as the case
may be),


 


(vi)                              release the Parent or all or substantially all of
the value of the Subsidiary Guarantee Agreement or all or substantially all of
the value of the Collateral without the written consent of each Lender, or


 


(vii)                           change any provisions of any Loan Document in
a manner that by its terms adversely affects the rights in respect of payments
due to or Commitments of Lenders holding Loans or Commitments of any Class
differently than those holding Loans or Commitments of any other Class, without
the written consent of Lenders holding a majority in interest of the
outstanding Loans of such Class (and, in the case of the Revolving Class, LC
Exposure, Swingline Exposure and unused Revolving Commitments); provided
that no such consent shall be required with respect to rights to or priorities
of prepayments of additional series of Loans that may be approved by the
Required Lenders;


 


provided, further, that (A)
no such agreement shall amend, modify or otherwise affect the rights or duties
of the Administrative Agent or any LC Issuer or the Swingline Lender without
the prior written consent of the Administrative Agent or such LC Issuer or the
Swingline Lender, as the case may be, and (B) to the extent specified in Section 2.01(c),
this Agreement may be amended to establish Incremental Loan Commitments of any
Series pursuant to an Incremental Loan


 


100





















 


Amendment executed between the Borrower, the relevant
Lenders of such Series and the Administrative Agent, and any such Incremental
Loan Amendment shall not require the consent of any other party to this
Agreement.


 


(c)                                  Amendments
to Security Documents. 
The Administrative Agent may, with the prior consent of the Required
Lenders (but not otherwise), consent to any modification, supplement or waiver
under any of the Loan Documents, provided that, without the prior
consent of each Lender, the Administrative Agent shall not (except as provided
herein or in the Security Documents) release all or substantially all of the
Collateral, or otherwise terminate all or substantially all of the Liens, under
the Security Documents, agree to additional obligations being secured by all or
substantially all of the Collateral under the Security Documents (except that
no such consent shall be necessary, so long as the Required Lenders have
consented thereto, (i) if such additional obligations shall be junior to the
Lien in favor of the other obligations secured by the Security Documents or
(ii) if such additional obligations consist of one or more additional tranches
of Loans under this Agreement), alter the relative priorities of the
obligations entitled to the benefits of the Liens created under the Security
Documents with respect to all or substantially all of such Collateral, except
that no such consent shall be required, and the Administrative Agent is hereby
authorized (and hereby agrees with the Borrower, upon its request), (x) to
release any Lien covering property that is the subject of either a disposition
of property permitted hereunder or a disposition to which the Required Lenders
have consented and (y) to release any Subsidiary from its obligations under any
Subsidiary Guaranty executed by such Subsidiary upon a disposition of such
Subsidiary permitted hereunder or a disposition to which the Required Lenders
have consented.


 


Section 9.03 
Expenses;
Indemnity; Damage Waiver.


 


(a)                                  Expenses.  The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Arrangers, including the reasonable
fees, charges and disbursements of Shearman & Sterling LLP as counsel for
the Arrangers (together with any local counsel), in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents and involvement in review of and advice
concerning all other elements of the Transactions or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any LC Issuer in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder, and (iii) all out-of-pocket expenses incurred by
the Administrative Agent, any LC Issuer or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any LC
Issuer or any Lender following and during the continuance of an Event of
Default, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.


 


(b)                                 Indemnification
by Borrower.  The Borrower shall
indemnify the Administrative Agent, each LC Issuer and each Lender, and each
Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each


 


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Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses, including the fees, charges and disbursements of outside legal
counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of any Loan Document or any other agreement or instrument contemplated
hereby, the performance by the parties to the Loan Documents of their
respective obligations thereunder or the consummation of the Transactions or
any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom, including any refusal by the respective
LC Issuer to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit, (iii) any Environmental Liability
related in any way to the Parent, the Borrower or any of the Subsidiaries (and
not caused by the actions of any Indemnitee), or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and regardless
of whether such claim, litigation, investigation or proceeding is brought by
any Loan Party, its directors, shareholders or creditors or an Indemnitee,
whether any Indemnitee is a party thereto and whether or not the Transactions
are consummated, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence, bad faith or willful misconduct of such Indemnitee or
(y) results from disputes among such Lender and one or more other Lenders.


 


(c)                                  Indemnification
by Lenders.  To the extent that
the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent or any LC Issuer or the Swingline Lender under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or such LC Issuer or the Swingline Lender, as the case may
be, such Lender’s pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided
that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent or such LC Issuer or the Swingline Lender in its capacity
as such.  For purposes hereof, a Lender’s
“pro rata share” of any amount payable to the Administrative Agent shall be
determined based upon such Lender’s share of the sum of the total Revolving
Exposure, outstanding Term Loans, Incremental Loans and unused Commitments at
the time, and a “Lender’s “pro rata share” of any amount payable to an LC
Issuer shall be determined based upon such Lender’s share of the sum of the
total Revolving Loans, LC Exposure and unused revolving Commitments at the
time.


 


(d)                                 Waiver
of Certain Damages.  To the extent
permitted by applicable law, neither the Parent, the Borrower nor any
Subsidiary shall assert, and each hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.


 


(e)                                  Payments.  All amounts due under this Section shall
be payable not later than ten Business Days after written demand therefor.


 


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Section 9.04 
Successors and Assigns.


 


(a)                                  The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that the Borrower may not assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of each
Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of paragraph (b) of this Section, (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section or (iii)
by way of pledge or assignment of a security interest subject to the
restrictions of paragraph (f) of this Section (and any other attempted
assignment or transfer by any party hereto shall be null and void).  Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants
to the extent provided in paragraph (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)                                 Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided
that (i) except in the case of an assignment of the entire remaining amount of
the assigning Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
applicable Commitment is not then in effect, the principal outstanding balance
of the Loan of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the
Assignment and Assumption, as of the Trade Date) shall not be less than
$1,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consent (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to
the Loan or the Commitment assigned, except that this clause (ii) shall not (x)
apply to rights in respect of Swingline Loans, or (y) prohibit any Lender from
assigning all or a portion of its rights and obligations among separate Classes
of Commitments or Loans on a non-pro rata basis;
(iii) any assignment of a Revolving Commitment must be approved by the
Administrative Agent and the LC Issuer unless the Person that is the proposed
assignee is itself a Lender with a Revolving Commitment (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and (iv) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of
$3,500, and the Eligible Assignee,
if it shall not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.  Subject to
acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and


 


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Assumption,
be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto)
but shall continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17
and 9.03 with respect to facts and circumstances
occurring prior to the effective date of such assignment.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this paragraph
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (d)
of this Section.


 


(c)                                  The
Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at one of its offices in New York a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitments of, and principal
amounts of the Loans owing to, each Lender pursuant to the terms hereof from
time to time (the “Register”). 
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the LC Issuers and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary.  The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.


 


(d)                                 Upon
its receipt of a duly completed Assignment and Assumption executed by an
Assigning Lender and an assignee, the assignee’s completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section 9.04
and any written consent to such assignment required by paragraph (b) of this Section 9.04,
the Administrative Agent shall accept such Assignment and Assumption and record
the information contained therein in the Register.  No assignment shall be effective for purposes
of this Assignment unless it has been recorded in the Register as provided in
this paragraph.


 


(e)                                  Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the LC Issuers and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement. 
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant.  Subject to paragraph (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section.  To the extent


 


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permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as though it were a Lender, provided such Participant agrees
to be subject to Section 2.18(d) as though it were a Lender.


 


(f)                                    A
Participant shall not be entitled to receive any greater payment under Sections
2.15 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. 
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section 2.17(e)
and (f) as though it were a Lender.


 


(g)                                 Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.


 


(h)                                 Each
such assignment made as a result of a request by the Borrower pursuant to Section 2.19
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.


 


(i)                                     No
Lender shall be obligated to make any such assignment as a result of a request
by the Borrower pursuant to Section 2.19 unless and until such Lender
shall have received one or more payments from either one or more Loan Parties
or one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Loans owing to such 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.


 


(j)                                     By
executing and delivering an Assignment and Assumption, each Lender 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 Assumption, such assigning Lender 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 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 5.01
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such


 


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Assignment
and Assumption; (iv) such assignee will, independently and without
reliance upon the Administrative Agent or any other agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement; (v) such assignee
confirms that it is an Eligible Assignee; (vi) such assignee appoints and
authorizes the Administrative 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 the Administrative Agent by the terms hereof and thereof, together
with such powers and discretion as are reasonably incidental 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 the Issuing Bank or the Swingline Lender,
as the case may be.


 


(k)                                  Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose
funding vehicle identified as such in writing from time to time by the Granting
Lender to the Administrative Agent and the Loan Parties (an “SPC”) the option to provide all or any part
of any Loan that such Granting Lender would otherwise be obligated to make
pursuant to this Agreement, provided
that (i) nothing herein shall constitute a commitment by any SPC to fund
any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof.  The making of a Loan by an SPC hereunder
shall utilize the Commitment of the Granting Lender to the same extent, and as
if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that (i) no
SPC shall be liable for any indemnity or similar payment obligation under this
Agreement for which a Lender would be liable, (ii) no SPC shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 (or any other increased costs
protection provision) and (iii) the Granting Lender shall for all purposes,
including, without limitation, the approval of any amendment or waiver of any
provision of any Loan Document, remain the Lender of record hereunder.  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior
Indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency, or liquidation proceeding under the laws of the United
States or any State thereof. 
Notwithstanding anything to the contrary contained in this Agreement, any
SPC may (i) with notice to, but without prior consent of, the Loan Parties
and the Administrative Agent and without paying any processing fee therefor,
assign all or any portion of its interest in any Loan to the Granting Lender
and (ii) disclose on a confidential basis any non-public information
relating to its funding of Loans to any rating agency, commercial paper dealer
or provider of any surety or guarantee or credit or liquidity enhancement to
such SPC.  This subsection (i) may
not be amended without the prior written consent of each Granting Lender, all
or any part of whose Loans are being funded by the SPC
at the time of such amendment.


 


Section 9.05  Survival.  All covenants, agreements, representations
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit regardless of any investigation made by any such other party
or on its behalf and


 


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notwithstanding that the Administrative
Agent, any LC Issuer or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Revolving Commitments have not expired or
terminated.  The provisions of Sections
2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the Transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit or the Commitments or the termination of this
Agreement or any provision hereof.


 


Section 9.06  Counterparts;
Integration; Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract.  This
Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Administrative Agent constitute the entire
contract among the parties relating to the subject matter hereof and supersede
any and all previous agreements and understandings, oral or written, relating
to the subject matter hereof.  Except as
provided in Article IV, this Agreement shall become effective when it
shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. 
Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.


 


Section 9.07  Severability.  Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.


 


Section 9.08  Right of
Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of any Loan
Party against any of and all the obligations of such Loan Party now or
hereafter existing under the Loan Documents held by such Lender, irrespective
of whether or not such Lender shall have made any demand under the Loan
Documents and although such obligations may be unmatured.  The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.


 


Section 9.09 
Governing
Law; Jurisdiction; Consent to Service of Process.


 


(a)                                  Governing
Law.  This Agreement shall be construed in
accordance with and governed by the law of the State of New York.


 


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(b)                                 Submission
to Jurisdiction.  Each of the Parent
and the Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to any Loan
Document, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, any LC Issuer or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document
against the Parent, the Borrower or their properties in the courts of any
jurisdiction.


 


(c)                                  Waiver
of Venue.  Each of the Parent
and the Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement or any other Loan Document in any court
referred to in paragraph (b) of this Section. 
Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.


 


(d)                                 Service
of Process.  Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 9.01(a) only. 
Nothing in this Agreement or any other Loan Document will affect the
right of any party to this Agreement to serve process in any other manner permitted
by law.


 


Section 9.10  WAIVER OF
JURY TRIAL.  EACH PARTY
HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY).  EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


Section 9.11  Headings.  Article and Section headings and
the Table of Contents used herein are for convenience of reference only, are
not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.


 


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Section 9.12  Confidentiality.  Each of the Administrative Agent, the Lenders
and the LC Issuers agrees to maintain the confidentiality of the Information
(as defined below), except that Information may be disclosed (a) to its
Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process on prior notice to the Borrower, where
practicable, (d) to any other party hereto, (e) in connection with and to the
extent necessary for the exercise of any remedies hereunder or under any other
Loan Document or any action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those
of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach
of this Section or (y) becomes available to the Administrative Agent, any
Lender, any LC Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Parent or the Borrower or
any other Lender, LC Issuer, the Administrative Agent or their respective
Affiliates in violation of this Section.


 


For purposes of this Section, “Information”
means all information received from the Parent or the Borrower or any of its
Subsidiaries relating to the Parent or the Borrower or any of its Subsidiaries
or any of their respective businesses, other than any such information that was
available to the Administrative Agent, any Lender or any LC Issuer on a
nonconfidential basis prior to disclosure by the Parent or the Borrower or any
of its Subsidiaries.  Any Person required
to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of reasonable
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.


 


Section 9.13  Interest Rate
Limitation.  Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the “Charges”), shall exceed the
maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be limited
to the Maximum Rate and, to the extent lawful, the interest and Charges that
would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.


 


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Section 9.14  Patriot Act.  Each Lender hereby notifies each Loan Party
that pursuant to the requirements of the Patriot Act, such Lender maybe
required to obtain, verify and record information that identifies each Loan
Party, which information includes the name and address of each Loan Party and
other information that will allow such Lender to identify each Loan Party in
accordance with the Patriot Act.


 


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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective officers as of the day
and year first above written.


 


	
   

  	
  ALASKA COMMUNICATIONS SYSTEMS

  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Wilson

  	
   

  
	
   

  	
   

  	
   Name:  David
  Wilson

  
	
   

  	
   

  	
   Title:  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. Federal Tax Identification No.: 
                      

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ALASKA COMMUNICATIONS SYSTEMS

  GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Wilson

  	
   

  
	
   

  	
   

  	
   Name:  David Wilson

  
	
   

  	
   

  	
   Title:  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. Federal Tax Identification No.: 
                      

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CANADIAN IMPERIAL BANK OF COMMERCE,

  acting through its New York Agency, as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carter Harned

  	
   

  
	
   

  	
   

  	
  Name:  Carter
  Harned

  
	
   

  	
   

  	
  Title:  Executive
  Director

  
	
   

  	
   

  	
  CIBC
  World Markets Corp.,

   AS AGENT

  



 


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  LENDERS

  
	
   

  	
   

  
	
   

  	
  CIBC INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Carter Harned

  	
   

  
	
   

  	
   

  	
   Name:

  	
  Carter Harned

  
	
   

  	
   

  	
   Title: 

  	
  Executive Director

  
	
   

  	
   

  	
   

  	
  CIBC World Markets Corp.,

   AS AGENT

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Kowalczuk

  	
   

  
	
   

  	
   

  	
   Name:

  	
  John Kowalczuk

  
	
   

  	
   

  	
   Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David A. Banmiller

  	
   

  
	
   

  	
   

  	
   Name:

  	
  David A. Banmiller

  
	
   

  	
   

  	
   Title:

  	
  Vice President

  
							



 


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