Exhibit 10.1


 


CREDIT AND
GUARANTY AGREEMENT


 


Dated as of February 29, 2008


 


by and among


 


ABOVENET, INC.


 


ABOVENET COMMUNICATIONS, INC.


 


ABOVENET OF UTAH, LLC


 


ABOVENET OF VA, LLC


 


ABOVENET INTERNATIONAL, INC.

as Borrowers,


 


and the Guarantors party hereto,


as Guarantors,


 


SOCIETE GENERALE,


as Administrative Agent,


 


CIT LENDING SERVICES CORPORATION,


as Documentation Agent,


 


and


 


THE
OTHER LENDERS PARTY HERETO


 





















 


TABLE
OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Article I 

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.01

  	
  Defined Terms

  	
  1

  
	
   

  	
  Section 1.02

  	
  Other Interpretive Provisions

  	
  33

  
	
   

  	
  Section 1.03

  	
  Accounting Terms

  	
  33

  
	
   

  	
  Section 1.04

  	
  Rounding

  	
  34

  
	
   

  	
  Section 1.05

  	
  References to Laws

  	
  34

  
	
   

  	
  Section 1.06

  	
  Times of Day

  	
  34

  
	
   

  	
  Section 1.07

  	
  Letter of Credit Amounts

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  Article II 

  	
  THE COMMITMENTS AND CREDIT EXTENSIONS

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.01

  	
  Loans

  	
  35

  
	
   

  	
  Section 2.02

  	
  Borrowings, Conversions and Continuations of Loans

  	
  36

  
	
   

  	
  Section 2.03

  	
  Letters of Credit

  	
  37

  
	
   

  	
  Section 2.04

  	
  Reserved

  	
  46

  
	
   

  	
  Section 2.05

  	
  Prepayments

  	
  46

  
	
   

  	
  Section 2.06

  	
  Termination or Reduction of Revolving Commitments
  and Delayed Draw Commitments

  	
  50

  
	
   

  	
  Section 2.07

  	
  Repayment of Loans

  	
  51

  
	
   

  	
  Section 2.08

  	
  Interest

  	
  51

  
	
   

  	
  Section 2.09

  	
  Fees

  	
  53

  
	
   

  	
  Section 2.10

  	
  Computation of Interest and Fees

  	
  54

  
	
   

  	
  Section 2.11

  	
  Evidence of Debt

  	
  54

  
	
   

  	
  Section 2.12

  	
  Payments Generally

  	
  55

  
	
   

  	
  Section 2.13

  	
  Sharing of Payments

  	
  57

  
	
   

  	
  Section 2.14

  	
  Handling of Proceeds of Collateral; Cash Dominion

  	
  58

  
	
   

  	
  Section 2.15

  	
  Incremental Facility

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  Article III 

  	
  TAXES, YIELD PROTECTION AND ILLEGALITY

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.01

  	
  Taxes

  	
  61

  
	
   

  	
  Section 3.02

  	
  Illegality

  	
  64

  
	
   

  	
  Section 3.03

  	
  Inability to Determine Rates

  	
  65

  
	
   

  	
  Section 3.04

  	
  Increased Cost and Reduced Return; Capital Adequacy

  	
  65

  
	
   

  	
  Section 3.05

  	
  Funding Losses

  	
  66

  
	
   

  	
  Section 3.06

  	
  Matters Applicable to all Requests for Compensation;
  Mitigation

  	
  66

  
	
   

  	
  Section 3.07

  	
  Survival

  	
  67

  
					



 


i





















 


	
  Article IV 

  	
  CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01

  	
  Conditions of Initial Credit Extension

  	
  67

  
	
   

  	
  Section 4.02

  	
  Conditions to all Credit Extensions

  	
  70

  
	
   

  	
   

  	
   

  	
   

  
	
  Article V 

  	
  REPRESENTATIONS AND WARRANTIES

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.01

  	
  Existence, Qualification and Power

  	
  72

  
	
   

  	
  Section 5.02

  	
  Authorization; No Contravention

  	
  72

  
	
   

  	
  Section 5.03

  	
  Governmental Authorization; Other Consents

  	
  72

  
	
   

  	
  Section 5.04

  	
  Binding Effect

  	
  72

  
	
   

  	
  Section 5.05

  	
  Financial Statements; No Material Adverse Effect

  	
  73

  
	
   

  	
  Section 5.06

  	
  Litigation 

  	
  74

  
	
   

  	
  Section 5.07

  	
  No Default

  	
  74

  
	
   

  	
  Section 5.08

  	
  Ownership of Property; Liens

  	
  74

  
	
   

  	
  Section 5.09

  	
  Environmental Compliance

  	
  74

  
	
   

  	
  Section 5.10

  	
  Insurance

  	
  75

  
	
   

  	
  Section 5.11

  	
  Taxes

  	
  75

  
	
   

  	
  Section 5.12

  	
  ERISA Compliance

  	
  75

  
	
   

  	
  Section 5.13

  	
  Capitalization; Subsidiaries

  	
  76

  
	
   

  	
  Section 5.14

  	
  Margin Regulations; Investment Company Act

  	
  77

  
	
   

  	
  Section 5.15

  	
  Disclosure 

  	
  77

  
	
   

  	
  Section 5.16

  	
  Compliance with Laws

  	
  77

  
	
   

  	
  Section 5.17

  	
  Intellectual Property; Licenses, Etc 

  	
  77

  
	
   

  	
  Section 5.18

  	
  Broker’s Fees

  	
  78

  
	
   

  	
  Section 5.19

  	
  Labor Matters

  	
  78

  
	
   

  	
  Section 5.20

  	
  Business Locations

  	
  78

  
	
   

  	
  Section 5.21

  	
  Perfection of Security Interests in the Collateral

  	
  78

  
	
   

  	
  Section 5.22

  	
  Solvency

  	
  78

  
	
   

  	
  Section 5.23

  	
  Reserved

  	
  79

  
	
   

  	
  Section 5.24

  	
  No Restricted Payments

  	
  79

  
	
   

  	
  Section 5.25

  	
  Material Contracts

  	
  79

  
	
   

  	
  Section 5.26

  	
  Reserved

  	
  79

  
	
   

  	
  Section 5.27

  	
  Patriot Act 

  	
  79

  
	
   

  	
  Section 5.28

  	
  Licensing

  	
  79

  
	
   

  	
  Section 5.29

  	
  Deposit Accounts

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VI 

  	
  AFFIRMATIVE COVENANTS

  	
  80

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.01

  	
  Financial Statements

  	
  81

  
	
   

  	
  Section 6.02

  	
  Certificates; Other Information

  	
  82

  
	
   

  	
  Section 6.03

  	
  Notices

  	
  83

  
					



 


ii





















 


	
   

  	
  Section 6.04

  	
  Payment of Obligations

  	
  85

  
	
   

  	
  Section 6.05

  	
  Preservation of Existence, Etc

  	
  85

  
	
   

  	
  Section 6.06

  	
  Maintenance of Properties

  	
  86

  
	
   

  	
  Section 6.07

  	
  Maintenance of Insurance

  	
  86

  
	
   

  	
  Section 6.08

  	
  Compliance with Laws

  	
  88

  
	
   

  	
  Section 6.09

  	
  Books and Records

  	
  88

  
	
   

  	
  Section 6.10

  	
  Inspection Rights; Annual Meeting

  	
  89

  
	
   

  	
  Section 6.11

  	
  Use of Proceeds

  	
  89

  
	
   

  	
  Section 6.12

  	
  Additional Domestic Subsidiaries

  	
  89

  
	
   

  	
  Section 6.13

  	
  ERISA Compliance

  	
  90

  
	
   

  	
  Section 6.14

  	
  Pledged Assets

  	
  90

  
	
   

  	
  Section 6.15

  	
  Covenant with Respect to Environmental Matters

  	
  91

  
	
   

  	
  Section 6.16

  	
  Securities Account Control Agreement

  	
  92

  
	
   

  	
  Section 6.17

  	
  Lenders Meetings

  	
  92

  
	
   

  	
  Section 6.18

  	
  Non-Consolidation

  	
  92

  
	
   

  	
  Section 6.19

  	
  Syndication

  	
  92

  
	
   

  	
  Section 6.20

  	
  Tax Returns

  	
  93

  
	
   

  	
  Section 6.21

  	
  Opinions

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VII 

  	
  NEGATIVE COVENANTS

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.01

  	
  Liens

  	
  93

  
	
   

  	
  Section 7.02

  	
  Investments

  	
  95

  
	
   

  	
  Section 7.03

  	
  Indebtedness

  	
  96

  
	
   

  	
  Section 7.04

  	
  Fundamental Changes; Acquisitions

  	
  97

  
	
   

  	
  Section 7.05

  	
  Dispositions

  	
  100

  
	
   

  	
  Section 7.06

  	
  Restricted Payments

  	
  100

  
	
   

  	
  Section 7.07

  	
  Change in Nature of Business 

  	
  100

  
	
   

  	
  Section 7.08

  	
  Transactions with Affiliates and Insiders

  	
  100

  
	
   

  	
  Section 7.09

  	
  Burdensome Agreements

  	
  101

  
	
   

  	
  Section 7.10

  	
  Use of Proceeds

  	
  101

  
	
   

  	
  Section 7.11

  	
  Amendments of Material Contracts

  	
  101

  
	
   

  	
  Section 7.12

  	
  Organization Documents; Fiscal Year; Legal Name,
  State of Formation and Form of Entity; Accounting

  	
  101

  
	
   

  	
  Section 7.13

  	
  Ownership of Subsidiaries

  	
  102

  
	
   

  	
  Section 7.14

  	
  Sale and Leaseback Transactions

  	
  102

  
	
   

  	
  Section 7.15

  	
  Deposit Account Control Agreements; Bank Accounts

  	
  102

  
	
   

  	
  Section 7.16

  	
  Capital Expenditures

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VIII 

  	
  FINANCIAL COVENANTS

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.01

  	
  Financial Covenants

  	
  103

  
					



 


iii





















 


	
  Article IX 

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.01

  	
  Events of Default

  	
  103

  
	
   

  	
  Section 9.02

  	
  Remedies Upon Event of Default

  	
  107

  
	
   

  	
  Section 9.03

  	
  Reserved

  	
  107

  
	
   

  	
  Section 9.04

  	
  Application of Funds

  	
  107

  
	
   

  	
   

  	
   

  	
   

  
	
  Article X 

  	
  GUARANTY

  	
  108

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 10.01

  	
  The Guaranty

  	
  108

  
	
   

  	
  Section 10.02

  	
  Obligations Unconditional

  	
  109

  
	
   

  	
  Section 10.03

  	
  Reinstatement

  	
  110

  
	
   

  	
  Section 10.04

  	
  Waivers

  	
  110

  
	
   

  	
  Section 10.05

  	
  Remedies

  	
  111

  
	
   

  	
  Section 10.06

  	
  Contribution by Guarantors

  	
  111

  
	
   

  	
  Section 10.07

  	
  Guarantee of Payment; Continuing Guarantee

  	
  112

  
	
   

  	
  Section 10.08

  	
  Subordination of Other Obligations

  	
  112

  
	
   

  	
   

  	
   

  	
   

  
	
  Article XI 

  	
  THE ADMINISTRATIVE AGENT

  	
  112

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 11.01

  	
  Appointment and Authorization of Administrative
  Agent

  	
  112

  
	
   

  	
  Section 11.02

  	
  Delegation of Duties 

  	
  113

  
	
   

  	
  Section 11.03

  	
  Liability of Administrative Agent

  	
  113

  
	
   

  	
  Section 11.04

  	
  Reliance by Administrative Agent

  	
  114

  
	
   

  	
  Section 11.05

  	
  Notice of Default

  	
  114

  
	
   

  	
  Section 11.06

  	
  Credit Decision; Disclosure of Information by
  Administrative Agent

  	
  115

  
	
   

  	
  Section 11.07

  	
  Indemnification of Agent-Related Persons

  	
  115

  
	
   

  	
  Section 11.08

  	
  Administrative Agent in its Individual Capacity

  	
  116

  
	
   

  	
  Section 11.09

  	
  Successor Administrative Agent

  	
  116

  
	
   

  	
  Section 11.10

  	
  Administrative Agent May File Proofs of Claim

  	
  117

  
	
   

  	
  Section 11.11

  	
  Collateral and Guaranty Matters

  	
  117

  
	
   

  	
  Section 11.12

  	
  Other Agents; Managers

  	
  118

  
	
   

  	
  Section 11.13

  	
  Cooperation of Loan Parties

  	
  118

  
	
   

  	
  Section 11.14

  	
  Cooperation of Lenders

  	
  118

  
	
   

  	
  Section 11.15

  	
  One Lender Sufficient

  	
  118

  
	
   

  	
   

  	
   

  	
   

  
	
  Article XII 

  	
  MISCELLANEOUS

  	
  118

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 12.01

  	
  Amendments, Etc

  	
  118

  
	
   

  	
  Section 12.02

  	
  Notices and Other Communications; Facsimile Copies

  	
  120

  
	
   

  	
  Section 12.03

  	
  No Waiver; Cumulative Remedies

  	
  122

  
	
   

  	
  Section 12.04

  	
  Attorney Costs, Expenses and Taxes

  	
  122

  
					



 


iv





















 


	
   

  	
  Section 12.05

  	
  Indemnification by the Borrowers

  	
  122

  
	
   

  	
  Section 12.06

  	
  Payments Set Aside

  	
  124

  
	
   

  	
  Section 12.07

  	
  Successors and Assigns

  	
  124

  
	
   

  	
  Section 12.08

  	
  Confidentiality

  	
  129

  
	
   

  	
  Section 12.09

  	
  Set-off

  	
  130

  
	
   

  	
  Section 12.10

  	
  Interest Rate Limitation

  	
  130

  
	
   

  	
  Section 12.11

  	
  Counterparts

  	
  131

  
	
   

  	
  Section 12.12

  	
  Integration

  	
  131

  
	
   

  	
  Section 12.13

  	
  Survival of Representations and Warranties

  	
  131

  
	
   

  	
  Section 12.14

  	
  Severability

  	
  131

  
	
   

  	
  Section 12.15

  	
  Replacement of Lenders

  	
  131

  
	
   

  	
  Section 12.16

  	
  Governing Law

  	
  132

  
	
   

  	
  Section 12.17

  	
  Waiver of Right to Trial by Jury

  	
  132

  
	
   

  	
  Section 12.18

  	
  USA Patriot Act Notice

  	
  133

  
	
   

  	
  Section 12.19

  	
  Nonliability of Lenders

  	
  133

  
	
   

  	
   

  	
   

  	
   

  
	
  Article XIII 

  	
  APPOINTMENT OF THE BORROWER REPRESENTATIVE; JOINT
  AND SEVERAL LIABILITY OF THE BORROWERS

  	
  134

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 13.01

  	
  Borrower Representative

  	
  134

  
	
   

  	
  Section 13.02

  	
  Joint and Several Liability of Borrowers

  	
  134

  
					



 


v





















 


	
  SCHEDULES

  	
   

  
	
   

  	
   

  
	
  Schedule 2.01

  	
  - Commitments

  
	
  Schedule 5.10

  	
  - Insurance

  
	
  Schedule 5.11

  	
  - Taxes

  
	
  Schedule 5.12(c)

  	
  - No ERISA Event

  
	
  Schedule 5.13

  	
  - Subsidiaries

  
	
  Schedule 5.17

  	
  - Intellectual Property

  
	
  Schedule 5.20(a)

  	
  - Real Property

  
	
  Schedule 5.20(b)

  	
  - Tangible property

  
	
  Schedule 5.20(c)

  	
  - Corporate Information

  
	
  Schedule 5.20(d)

  	
  - No Change

  
	
  Schedule 5.24

  	
  - No Restricted Payments

  
	
  Schedule 5.25

  	
  - Material Contracts

  
	
  Schedule 5.28

  	
  - Governmental Approvals

  
	
  Schedule 5.29

  	
  - Banks with deposit or other accounts of the Borrower

  
	
  Schedule 6.08

  	
  - Compliance with Laws

  
	
  Schedule 7.02

  	
  - Investments

  
	
  Schedule 7.03

  	
  - Indebtedness

  
	
  Schedule 12.02

  	
  - Addresses for Administrative Agent, L/C Issuer and Borrower

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  A-1

  	
  Form of Loan Notice

  
	
  A-2

  	
  Form of Loan
  Conversion/Continuation Request

  
	
  B-1

  	
  Form of Revolving
  Note

  
	
  B-2

  	
  Form of Term Note

  
	
  B-3

  	
  Form of Delayed Draw
  Note

  
	
  C

  	
  Form of Compliance
  Certificate

  
	
  D

  	
  Form of Assignment
  and Assumption Agreement

  
	
  E-1

  	
  Form of Joinder
  Agreement (Borrower)

  
	
  E-2

  	
  Form of Joinder
  Agreement (Guarantor)

  



 


vi










 


 












 


CREDIT
AND GUARANTY AGREEMENT


 


This
CREDIT AND GUARANTY AGREEMENT is
entered into as of February 29, 2008, among ABOVENET,
INC., a Delaware corporation (“Holdings”), ABOVENET COMMUNICATIONS, INC., a Delaware corporation (“ACI”),
ABOVENET OF UTAH, LLC, a Delaware
limited liability company, ABOVENET OF VA, LLC,
a Virginia limited liability company and ABOVENET INTERNATIONAL,
INC., a Delaware corporation and such other Persons joined hereto as
a Borrower from time to time (each a “Borrower” and together, the “Borrowers”),
the Guarantors (as hereinafter defined) from time to time party hereto, the
Lenders (as hereinafter defined) from time to time party hereto, SOCIETE GENERALE, as Administrative Agent, and CIT LENDING SERVICES CORPORATION, as Documentation Agent.
The Borrowers have requested that the Lenders provide $60,000,000 in credit
facilities for the purposes set forth herein and the Lenders are willing to do
so on the terms and conditions set forth herein.


 


In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:


 


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS


 


Section 1.01                 Defined
Terms.


 


As used in this Agreement, the
following terms shall have the meanings set forth below:


 


“Accounts”
means all of the Borrowers’ present and future: 
(a) accounts (as defined in the UCC); (b) instruments,
documents, chattel paper (including electronic chattel paper) (all as defined
in the UCC); (c) reserves and credit balances arising in connection with
or pursuant to this Agreement; (d) guaranties in favor of any Loan Party, (e) other
supporting obligations, payment intangibles and letter of credit rights (all as
defined in the UCC); (f) property, including notes and deposits, of the
Borrowers’ account debtors securing the obligations owed by such account
debtors to the Borrowers; and (g) all proceeds of any of the foregoing.


 


“ACI”
has the meaning specified in the introductory paragraph hereto.


 


“Acquisition”
by any Person, means the acquisition by such Person, in a single transaction or
in a series of related transactions, of all or any substantial portion of the
Property of another Person or all or a portion greater than 50% of the Equity
Interest of another Person, in each case whether or not involving a merger or
consolidation with such other Person and whether for cash, property, services,
assumption of Indebtedness, securities or otherwise.


 


“Administrative
Agent” means Societe Generale, in its capacity as administrative agent
under any of the Loan Documents, or any successor administrative agent.


 

















 


“Administrative
Agent’s Bank Account” means the following bank account of the
Administrative Agent or such other account as the Administrative Agent may from
time to time notify the Borrowers and the Lenders:


 


Societe Generale, New York Branch 

ABA#: 026004226 

Account #: 9051422 

Reference: Abovenet Communications, Inc. 

(Attn: Carmen Espinal)


 


“Administrative
Agent’s Office” means the Administrative Agent’s address as set forth on Schedule 12.02
or such other address as the Administrative Agent may from time to time notify
the Borrowers and the Lenders.


 


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


 


“Affiliate”
means, with respect to any 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. 
“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. 
Without limiting the generality of the foregoing, a Person shall be
deemed to be Controlled by another Person if such other Person possesses,
directly or indirectly, power to vote 10% or more of the securities having
ordinary voting power for the election of directors, managing general partners
or the equivalent.


 


“Agent-Related
Persons” means each Agent, together with each of its Affiliates, and its
Approved Funds, and the officers, directors, employees, agents, advisors,
auditors and Controlling Persons and attorneys-in-fact of such Persons and
Affiliates.


 


“Agents”
means the Administrative Agent and the Documentation Agent.


 


“Aggregate
Consolidated Cash Balance” means the amount of cash or Cash Equivalents
held by the Borrowers at any time.


 


“Aggregate
Payments”  has the meaning given to
that term in Section 10.06 hereof.


 


“Agreement”
means this Credit and Guaranty Agreement.


 


“Allocable
Amount” has the meaning set forth in Section 13.02(g).


 


“Applicable
Credit Percentages” has the meaning given to that term in Section 2.15(b) hereof.


 


2

















 


“Applicable
Margin” means with respect to the Loans, the following percentages per
annum, based upon the Net Total Funded Debt Ratio, as set forth in the most
recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):


 


	
  Pricing Level

  	
   

  	
  Net Total Funded Debt Ratio

  	
   

  	
  Revolving Loans

  	
   

  	
  Term Loans and Delayed Draw Term Loans

  	
   

  
	
   

  	
  Eurodollar

  	
   

  	
  Base Rate

  	
   

  	
  Eurodollar

  	
   

  	
  Base Rate

  	
   

  
	
  1

  	
   

  	
  <=1.0x

  	
   

  	
  275

  	
   

  	
  175

  	
   

  	
  300

  	
   

  	
  200

  	
   

  
	
  2

  	
   

  	
  >1.0x

  	
   

  	
  300

  	
   

  	
  200

  	
   

  	
  325

  	
   

  	
  225

  	
   

  



 


Notwithstanding
anything to the contrary set forth herein, the Applicable Margin shall be
Pricing Level 2 until such time as the Borrowers satisfy the covenant set forth
in Section 6.01(a)(i).


 


Any
increase or decrease in the Applicable Margin resulting from a change in the
Net Total Funded Debt Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered to the
Administrative Agent pursuant to Section 6.02(b) indicating
that such change is warranted; provided, however, that if a
Compliance Certificate is not delivered to the Administrative Agent when due in
accordance with such Section, then Pricing Level 2 shall apply as of the first
Business Day after the date on which such a Compliance Certificate was required
to have been delivered and shall continue to apply until the first Business Day immediately following the date a Compliance
Certificate is delivered to the Administrative Agent in accordance with Section 6.02(b) indicating
that such change is warranted, whereupon
the Applicable Margin shall be
adjusted based upon the calculation of the Net Total Funded Debt Ratio
contained in such Compliance Certificate.  Notwithstanding the foregoing, the Applicable
Margin shall be set at Pricing Level 1 from
the Closing Date through the first Business Day immediately following the date
the Borrowers deliver the financial statements and related Compliance
Certificate required by and in accordance with Section 6.01(a) and
Section 6.02(b), in each case for the Fiscal Year ending December 31,
2007.  In the event that (a) any
financial statement delivered pursuant to Section 6.01(a) or (b) or
Compliance Certificate delivered pursuant to Section 6.02(b) is
shown to be inaccurate and (b) such inaccuracy if corrected, would
have led to the application of a higher Applicable Margin for any period (an “Applicable
Period”) than the Applicable Margin applied for such Applicable Period,
then (i) the Borrowers shall immediately deliver to the
Administrative Agent a corrected Compliance Certificate for such Applicable
Period, (ii)  the Applicable Margin for such Applicable Period shall be
Pricing Level 2, and (iii) the Borrowers shall immediately pay to the
Administrative Agent the accrued additional interest owing as a result of the
application of such increased Applicable Margin for such Applicable Period,
which payment shall be promptly applied by the Administrative Agent.  The rights of the Administrative Agent set
forth above shall survive the Termination Date and are in addition to rights of
the Administrative Agent and Lenders with respect to Sections 2.08
and 9.02 and other of their respective rights under this Agreement.


 


3

















 


“Approved
Fund” means (i) any Person (other than a natural person) engaged in
making, purchasing, holding, or investing in commercial loans and similar
extensions of credit and that is advised, administered, or managed by a Lender,
an Affiliate of a Lender (or an entity or an Affiliate of an entity that
administers, advises or manages a Lender); (ii) with respect to any Lender
that is an investment fund, any other investment fund that invests in loans and
that is advised, administered or managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor; and (iii) any third
party which provides “warehouse financing” to a Person described in the
preceding clause (i) or (ii) (and any Person described in said
clause (i) or (ii) shall also be deemed an Approved Fund with respect
to such third party providing such warehouse financing).


 


 “Assignment and Assumption” means an
Assignment and Assumption Agreement substantially in the form of Exhibit D.


 


“Attorney
Costs” means and includes all fees, expenses and disbursements of any law
firm or other external counsel.


 


“Attributable
Indebtedness” means, on any date, in respect of any Capital Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of
such Person prepared as of such date in accordance with GAAP.


 


“Audited
Pre Closing Financial Statements” means the audited consolidated balance
sheet and the related consolidated statements of income or operations,
shareholders’ equity and cash flows, including the notes thereto, of the
Borrowers and their Domestic Subsidiaries for the Fiscal Year 2006.


 


“Auto-Extension
Letter of Credit” has the meaning set forth in Section 2.03(b)(iii).


 


“Availability Period” means, (a) with
respect to the Revolving Commitments, the period from and including the Closing
Date to the earliest of (i) the date one (1) Business Day prior to
the Maturity Date, (ii) the date of termination of the Revolving
Commitments pursuant to Section 2.06, and (iii) the date of
termination of the commitment of each Lender to make Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions, in each case
pursuant to Section 9.02 and (b) with respect to the Delayed
Draw Commitments, the period from and including the Closing Date to the 270th
day following (A) the Closing Date or, with respect to the New Loan
Commitments which are Delayed Draw Commitments, and upon the effectiveness of
the New Loan Commitments, as set forth in Section 2.15(d)(ii) hereof,
(B) the NLC Effective Date.


 


“Bankruptcy
Code” means Title 11 of the United States Code entitled “Bankruptcy,” as
now and hereafter in effect, or any successor statute.


 


“Base Rate” means for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate plus 1⁄2 of 1% or (b) the
per annum rate of interest most recently announced within Societe Generale as
reported by Bloomberg Financial Markets Commodities News, at its principal
office in New York City as its Prime Rate, with the understanding that Societe
Generale’s Prime Rate is one of its base rates and serves as the basis upon
which effective rates 


 


4

















 


of
interest are calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such internal publication
or publications as Societe Generale may designate.  Any change in the Base Rate resulting from a
change in the Prime Rate shall become effective on the Business Day on which
each change in the Prime Rate occurs.


 


“Base
Rate Loan” means a Loan that bears interest at a rate based on the Base
Rate.


 


“Blocked
Account” means each of ACI’s accounts numbers 2000029949878, 2000029949917,
2000029949920, 2000029949946, 2079951060063 and 2079915060199, with Wachovia
Bank.


 


“Borrower
Representative” means ACI, in its capacity as the borrowing agent on behalf
of itself and the Borrowers.


 


“Borrowing”
means a borrowing consisting of simultaneous Loans of the same Type and, in the
case of Eurodollar Rate Loans, having the same Interest Period made by the
Lenders pursuant to Sections 2.01 and 2.02.


 


“Borrowing
Date” means each date on which a Borrowing is made to the Borrowers
pursuant to a Revolving Loan, Term Loan or a Delayed Draw Loan, pursuant to Section 2.01(a),
Section 2.01(b) or Section 2.01(c), respectively.


 


“Borrower”
and “Borrowers” have the meanings specified in the introductory
paragraph hereto.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed
in, the state of New York or, with respect to a Letter of Credit, the state
where the L/C Issuer’s office is located and, if such day relates to any
Eurodollar Rate Loan, means any such day meeting the above requirements on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.


 


“Businesses”
means, at any time, a collective reference to the businesses operated by the
Borrowers and their Domestic Subsidiaries at such time.


 


“Capital
Expenditures” means, with respect to any Person, all expenditures which, in
accordance with GAAP, would be required to be capitalized and shown on the
balance sheet of such Person, including expenditures in respect of Capital
Leases.


 


“Capital
Lease” means, with respect to any Person, any lease of any property
(whether real, personal or mixed) by such Person as lessee which would, in
accordance with GAAP, be required to be accounted for as a capital lease on the
balance sheet of such person.


 


 “Cash Collateralize” has the meaning
specified in Section 2.03(g).


 


“Cash
Control Period” means the period of time commencing upon the occurrence and
continuation of an Event of Default and ending on the earliest of (a) the
date on which the 


 


5

















 


Required Lenders have waived such Event
of Default and agreed that the Cash Control Period has terminated, (b) the
date on which such Event of Default has been cured, or (c) the Termination
Date.


 


“Cash
Equivalents” means, as at any date, (a) Dollar denominated time
deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short term commercial paper
rating from S&P is at least A1 or the equivalent thereof or from Moody’s is
at least P1 or the equivalent thereof (any such bank being an “Approved Bank”),
in each case with maturities of not more than 270 days from the date of
acquisition, (b) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A1 (or the
equivalent thereof) or better by S&P or P1 (or the equivalent thereof) or
better by Moody’s and maturing within six months of the date of acquisition, (c) repurchase
agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (d) Investments, classified in accordance with
GAAP as current assets, in money market investment programs registered under
the Investment Company Act of 1940, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character described in
the foregoing subdivisions (a) through (c).


 


“Change
in Law” means (a) the adoption, effectiveness, phase-in or
applicability of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by any Lender (or by any Lending
Office of such Lender or by such Lender’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.


 


“Change
of Control” means (a) Holdings shall cease to own directly, free and
clear of all Liens or other encumbrances (other than Liens securing the
Obligations), 100% of the outstanding Equity Interest of ACI, (b) ACI
shall cease to own directly, free and clear of all Liens or other encumbrances
(other than Liens securing the Obligations), 100% of the outstanding Equity
Interest of the Domestic Subsidiaries or (c) any person or “group” (within
the meaning of Rules 13d 3 and 13d 5 under the Exchange Act) other than
Franklin Mutual Advisers, LLC and/or its Affiliates (i) shall have
acquired beneficial ownership of 35% or more on a fully diluted basis of the
voting and/or economic interest in the Equity Interest of Holdings or (ii) shall
have obtained the power (whether or not exercised) to elect a majority of the
members of the board of directors (or similar governing body) of Holdings or
ACI.


 


 “Closing Checklist” means the closing
agenda or checklist attached to this Agreement as “Annex A”.


 


6

















 


“Closing
Date” means February 29, 2008.


 


“COBRA”
has the meaning set forth in Section 5.12(a) hereto.


 


 “Collateral” means, collectively, all
real and personal Property with respect to which Liens in favor of the
Administrative Agent are granted (or were intended to be granted) pursuant to
and in accordance with the terms of the Collateral Documents.


 


 “Collateral Assignment of Agreement”
means any agreement executed by each of the applicable Loan Parties in favor of
the Administrative Agent under and pursuant to which such Loan Parties
collaterally assign to the Administrative Agent all of their rights and
remedies to certain agreements.


 


“Collateral
Documents” means, collectively, the Security Agreement, the Collateral
Assignment of Agreements, the Deposit Account Control Agreements,
Uncertificated Securities Control Agreement, IP Security Acknowledgment and,
when executed pursuant to Section 6.16, the Securities Account
Control Agreement, and such other security agreements, instruments or documents
as may be executed and delivered by the Loan Parties pursuant to the terms of Section 6.12
and 6.14 or otherwise to secure the Obligations.


 


“Commitment”
means, as to each Lender, the Revolving Commitment, Delayed Draw Commitment
and/or Term Loan Commitment, as applicable, set forth opposite such Lender’s
name in the Register, as the same may be reduced or modified at any time and
from time to time pursuant to the terms hereof.


 


“Communications
Act” means, collectively, the Communications Act of 1934, as amended by the
Telecommunications Act of 1996, and as further amended, and the rules and
regulations promulgated thereunder, including, without limitation CFR Title 47
and the rules, regulations and decisions of the FCC, in each case as from time
to time in effect.


 


“Compensation
Period” has the meaning set forth in Section 2.12(d)(ii).


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit C,
to be issued by the chief executive officer or the chief financial officer of
the Borrower Representative.


 


“Consolidated
Capital Expenditures” means, for any period, for the Consolidated Group on
a consolidated basis, all Capital Expenditures, as determined in accordance
with GAAP.


 


“Consolidated EBITDA”
means, for any period for the Consolidated Group on a consolidated basis
(without duplication), an amount equal to Consolidated Net Income for the most
recently ended four (4) Fiscal Quarters plus the following to the
extent deducted in calculating such Consolidated Net Income:  (a) Consolidated Interest
Charges for such period, (b) the provision for federal, state, local and
foreign income taxes payable by the Consolidated Group for such period, (c) the
amount of depreciation and amortization expense for such period, (d) any
non-cash charges for such period (other than any non-cash items to the extent
such items represent an accrual of or reserve for cash expenses in any future
period), (e) any extraordinary


 


7

















 


or non-recurring non-cash losses or expenses for such period, all as
determined in accordance with GAAP, (f) the SEC Expenses, and (g) audit
fees with respect to financial statements for periods ending on or prior to December 31,
2006; less the sum of (x) non-cash items added to Consolidated Net
Income (including, but not limited to deferred purchase price of property or
services, gains or losses on foreign exchange transactions, gains or losses
generated by the transfer or conveyance of assets outside of the ordinary
course of business), and (y) interest income; excluding any
adjustment under (a) through (f) and (x) and (y) above for
amortization of (i) deferred rent as established pursuant to SOP 90-7, (ii) deferred
rent pursuant to SFAS No. 13, and (iii) deferred revenue.


 


“Consolidated
Fixed Charges” means, for any period for the Consolidated Group on a
consolidated basis (without duplication), an amount equal to the sum of (a) the
cash portion of Consolidated Interest Charges for such period (net of amounts
received during such period under Hedge Agreements designed to hedge against
fluctuations in interest rates); plus (b) Consolidated Scheduled
Funded Debt Payments for such period; plus (c) income taxes paid in
cash for such period, all as determined in accordance with GAAP; plus (d) payments
with respect to all Capital Leases, plus (e) Consolidated Capital
Expenditures for such period (excluding Consolidated Capital Expenditures (1) to
the extent financed with Indebtedness for borrowed money (other than
Indebtedness incurred hereunder), (2) made with proceeds of a Disposition
or of an Equity Issuance, in each case to the extent permitted otherwise to be
made pursuant to this Agreement, and (3) which are Excluded Customer
Capital Expenditures for such period), minus (f) income taxes
refunds received by any Loan Party in cash during such period, all as
determined in accordance with GAAP.


 


“Consolidated
Fixed Charges Coverage Ratio” means, for any period, the ratio of (a) Consolidated
EBITDA to (b) Consolidated Fixed Charges for such period.


 


“Consolidated
Group” means the Borrowers and the Domestic Subsidiaries.


 


“Consolidated
Indebtedness” means, on any date of determination, the Indebtedness of the
Consolidated Group on such date on a consolidated basis determined in
accordance with GAAP.


 


“Consolidated
Interest Charges” means, for any period, the interest expense (including
any expense for such period under Capital Leases that is treated as interest in
accordance with GAAP) of the Consolidated Group for such period with respect to
all outstanding Indebtedness of the Consolidated Group (including all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers’ acceptance financing and net costs under Hedge
Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP), determined on a consolidated
basis in accordance with GAAP.  For the
period from and including the Closing Date, until March 31, 2009,
Consolidated Interest Charges will be calculated on an annualized basis, based
on the Consolidated Interest Charges which may accrue during each month after
the Closing Date.


 


 “Consolidated Lease Obligations” means, on any date of
determination, the principal component of any outstanding long-term capital
lease obligations.


 


8

















 


“Consolidated
Net Income” means, for any period for the Consolidated Group on a
consolidated basis, the net income (or loss) of the Consolidated Group for such
period as determined in accordance with GAAP; provided that there shall
be excluded (i) the income (or loss) of any Person (other than a Domestic
Subsidiary of a Loan Party) in which any other Person (other than the Loan Parties
or any of their Domestic Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other distributions actually paid to a
Loan Party or any of its Domestic Subsidiaries by such Person during such
period, (ii) the income of any Domestic Subsidiary of a Loan Party to the
extent that the declaration or payment of dividends or similar distributions by
that Domestic Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary, (iii) any after-tax gains or losses attributable to asset
sales or returned surplus assets of any Pension Plan, and (iv) (to the
extent not included in clauses (i) through (iii) above) any net
extraordinary gains or losses.


 


“Consolidated
Scheduled Funded Debt Payments” means, for any period for the Consolidated
Group on a consolidated basis, the sum of all payments of principal on
Consolidated Indebtedness scheduled to be paid during such period, as
determined in accordance with GAAP.  For
purposes of this definition, payments of principal scheduled to be paid (a) shall
be determined after giving effect to any reduction of such scheduled payments
resulting from the application of any voluntary or mandatory prepayments made
during the applicable period, (b) shall be deemed to include the
Attributable Indebtedness in respect of Capital Leases, Synthetic Leases and
Sale and Leaseback Transactions, (c) shall not include any voluntary
prepayments set forth in Section 2.05(a) or mandatory prepayments
required pursuant to Section 2.05(b), and (d) shall be
determined without giving effect to the Following Business Day Convention.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its Property is bound.


 


“Contributing
Guarantor” has the meaning set forth in Section 10.06.


 


“Control”
has the meaning specified in the definition of “Affiliate.”


 


“Credit
Extension” means each of the following: (a) a Borrowing, and (b) an
L/C Credit Extension.


 


“Customer
Capital Expenditures” means “customer capital expenditures” determined for
the Consolidated Group using the methodology employed by the Borrowers in the
financial projections provided to the Lenders prior to the Closing Date.


 


“Dark
Fiber” means fiber optic cable through which no light is transmitted or
installed fiber optic cable not carrying a signal.


 


9

















 


“Debt
Issuance” means the issuance of any Indebtedness for borrowed money by any
Loan Party other than Indebtedness permitted under Section 7.03.


 


“Debtor
Relief Laws” means the Bankruptcy Code, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors generally.


 


“Default”
means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would be an Event of
Default.


 


“Defaulting Lender” means any
Lender that (a) has failed to fund any portion of the Loans or
participations in Letters of Credit required to be funded by it hereunder
within one (1) Business Day after the date required to be funded by it
hereunder, (b) has otherwise failed to pay the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one (1) Business
Day of the date when due, unless the subject of a good faith dispute, or (c) has
been deemed insolvent or becomes the subject of a bankruptcy or insolvency
proceeding under any Debtor Relief Laws.


 


“Default
Rate” means:


 


(a) when
used with respect to Obligations other than Letter of Credit Fees, an interest
rate equal to (i) the Base Rate plus (ii) the Applicable
Margin applicable to Base Rate Loans plus (iii) two percent (2%)
per annum;


 


(b) when
used with respect to a Eurodollar Rate Loan, an interest rate equal to (i) the
Eurodollar Rate plus (ii) the Applicable Margin plus (iii) two
percent (2%) per annum; and


 


(c) when
used with respect to Letter of Credit Fees, a rate equal to the Applicable
Margin for Revolving Loans that are Eurodollar Loans plus two percent
(2%) per annum;


 


in
all cases to the fullest extent permitted by applicable Laws.  Interest accruing at the Default Rate shall
be immediately payable upon demand.


 


“Delayed
Draw Commitment” means, as to each Lender, its obligation to make its
portion of the Delayed Draw Loans to the Borrowers pursuant to Section 2.01(c) and
the other terms and conditions of this Agreement, in the principal amount set
forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amounts may be reduced pursuant to Section 2.05(b) or
otherwise adjusted from time to time in accordance with this Agreement.  The initial aggregate amount of the Delayed
Draw Commitments is $18,000,000.


 


“Delayed
Draw Lenders” means, as of any date of determination, Lenders having a
Delayed Draw Commitment, or after the Delayed Draw Commitments have terminated,
Lenders holding any portion of the outstanding Delayed Draw Loan.


 


10






 












“Delayed
Draw Loan” has the meaning specified in Section 2.01(c).


 


“Delayed
Draw Note” has the meaning specified in Section 2.11(a).


 


“Delayed
Draw Unused Commitment” means, at any time, the amount by which the Delayed
Draw Commitments exceed the outstanding amount of all Delayed Draw Loans.


 


“Delayed
Draw Unused Commitment Fee” has the meaning given to the term in Section 2.09(a) hereof.


 


 “Deposit Account Control Agreement”
means an agreement among a Borrower, a depository institution, and the
Administrative Agent, which agreement is in a form reasonably satisfactory to
the Administrative Agent and which provides the Administrative Agent with “control”
(as such term is used in Article 9 of the UCC) over the deposit account(s) described
therein, as the same may be amended, modified, extended, restated, replaced, or
supplemented from time to time, and contains such other terms and conditions as
the Administrative Agent may reasonably require, including, that during a Cash
Control Period such depository institution shall, unless otherwise directed by
the Administrative Agent, wire, or otherwise transfer, in immediately available
funds, on a daily basis to the Administrative Agent’s Bank Account or such
other account designated by the Administrative Agent, all funds received or
deposited into such deposit account.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction and any grant of an
IRU) of any Property by any Loan Party or any Domestic Subsidiary (including
the Equity Interest of any Domestic Subsidiary) and including any sale,
assignment, transfer or other disposal, with or without recourse, of any notes
or accounts receivable or any rights and claims associated therewith, but excluding
(a) the sale, lease, license, transfer or other disposition of inventory
in the ordinary course of business of the Loan Parties and their Domestic
Subsidiaries, (b) the sale, lease, license, transfer or other disposition
of machinery and equipment no longer used or useful in the conduct of business
of the Loan Parties and their Domestic Subsidiaries, and having a sales or
transfer price not to exceed $2,000,000 in any Fiscal Year, (c) any sale,
lease, license, transfer or other disposition of Property by any Loan Party to
any other Loan Party, or any Domestic Subsidiary to any Loan Party, (d) any
Involuntary Disposition by any Loan Party or any Domestic Subsidiary, (e) licenses
or leases of IP Rights or property, to the extent permitted pursuant to Section 7.01(i),
(f) abandonment of IP Rights to the extent permitted by the Security
Agreement, (g) dispositions of Cash Equivalents, (h) dispositions of
past due accounts receivable for collection or compromise in the ordinary
course of business, and (i) dispositions of Dark Fiber in the ordinary
course of business, including IRUs, pursuant to customer contracts or fiber
swap agreements entered into on an arms-length basis and consistent with past
practices, provided, however, in the case of (i) above, that
the relevant Loan Party or Domestic Subsidiary, as applicable, at all times
retains title to such asset.


 


“Documentation
Agent” means CIT Lending Services Corporation.


 


“Dollar”
and “$” mean lawful money of the United States.


 


 


11

















 


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.


 


“Eligible Assignee” means (a) a commercial bank organized under the laws
of the United States or any state thereof and having a combined capital and
surplus of at least $100,000,000; (b) a savings and loan association or
savings bank organized under the laws of the United States or any state thereof
and having a combined capital and surplus of at least $100,000,000; (c) any
insurance company, other financial institution or finance company (or other
institutional investors in the business of acquiring loans) organized under the
laws of the United States or any state thereof and having a combined capital
and surplus, or net worth, of at least $100,000,000; and (d) a commercial
bank organized under the laws of any other country or a political subdivision
thereof and having a combined capital and surplus of at least $100,000,000; provided
that such bank is acting through a branch or agency located in the United
States.


 


 “Environmental Laws” means the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
§ 9601, et  seq.), the Hazardous Materials Transportation Act
(49 U.S.C. § 1801, et  seq.), the Resource Conservation and
Recovery Act (42 U.S.C. § 6901, et  seq.), the Federal Clean
Water Act (33 U.S.C. § 1251 et  seq.), the Clean Air Act (42
U.S.C. § 7401 et  seq.), the Toxic Substances Control Act (15
U.S.C. § 2601 et  seq.), the Safe Drinking Water Act (42
U.S.C. § 300f to 300j-26 et  seq.), the Oil Pollution Act of
1990 (33 U.S.C. § 2701 et  seq.) and the Occupational Safety
and Health Act (29 U.S.C. § 651 et  seq.), as such laws may
be amended or otherwise modified from time to time, and any other federal,
state, local, foreign and other applicable statutes, laws, regulations,
ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions and common law
relating to pollution, the protection of the environment, natural resources,
human health or the release of any materials into the environment, including
those related to Hazardous Materials, hazardous substances or wastes, indoor
and outdoor air emissions, soil, groundwater, wastewater, surface water, storm
water, wetlands, sediment and discharges of wastewater to  public treatment systems.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, losses, punitive damages, consequential damages, costs
of environmental investigation and remediation, fines, penalties, indemnities
or expenses (including all reasonable fees, disbursements and expenses of
counsel, experts and consultants)), of the Borrowers or any Subsidiary directly
or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation,
storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


 


“Equity
Interest” means all of the equity capital, security, share, unit,
partnership interest, membership interest, ownership interest, equity interest,
option, warrant, right to purchase, participation, equity security or analogous
interest (or other ownership or profit interests in) of or in a corporation,
partnership, limited partnership, limited liability company, business trust or
other entity, of whatever nature, type, series or class, whether voting or
nonvoting, certificated or 


 


 


12

















 


 


uncertificated, common or preferred,
and all rights and privileges incident thereto, and all of the other ownership
or profit interest in such entity, whether or not outstanding on any date of
determination.


 


 “Equity Issuance” means any issuance by
Holdings to any Person of Equity Interest, other than (a) any issuance of
shares of its Equity Interest pursuant to the exercise of options or warrants, (b) any
issuance of its Equity Interest pursuant to the conversion of any debt
securities to equity or the conversion of any class of equity securities to any
other class of equity securities, and (c)  the issuance of Equity Interest
or the grant of options, warrants or other rights to receive shares of Equity
Interest to officers, directors, employees and consultants pursuant to employee
benefit or incentive plans or other similar arrangements.  The term “Equity Issuance” shall not be
deemed to include any Disposition.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, and any successor
thereto.


 


“ERISA
Affiliate” means any corporation, trade or business (whether or not
incorporated) under common control with a Borrower within the meaning of Section 414(b) or
(c) of the Internal Revenue Code (and Sections 414(m) and (o) of
the Internal Revenue Code for purposes of provisions relating to Section 412,
430, 431 or 432 of the Internal Revenue Code). 
Any former ERISA Affiliate of a Borrower or any of its Subsidiaries
shall continue to be considered an ERISA Affiliate of a Borrower or any of its
Subsidiaries within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of a Borrower or any of its Subsidiaries and
with respect to liabilities arising after such period for which a Borrower or
any of its Subsidiaries could be liable under the Internal Revenue Code or
ERISA.


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by a Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063
of ERISA during a plan year in which it was a substantial employer (as defined
in Section 4001(a)(2) of ERISA) or a cessation of operations that is
treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by a Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA; (d) the
filing of a notice of intent to terminate, the treatment of a Plan amendment as
a termination under Sections 4041 or 4041A of ERISA, or the commencement
of Proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability
under Title IV of ERISA, other than for PBGC premiums due but not delinquent
under Section 4007 of ERISA, upon a Borrower or any ERISA Affiliate; (g) the
occurrence of an act or omission which could give rise to the imposition on a
Borrower or any ERISA Affiliate of fines, penalties, taxes or related charges
under Chapter 43 of the Internal Revenue Code or under Section 409, Section 502(c),
(i) or (l), or Section 4071 of ERISA in respect of any Plan; (h) the
assertion of a material claim (other than routine claims for benefits) against
any Plan other than a Multiemployer Plan or the assets thereof, or against the
Borrowers or any ERISA Affiliate in connection with any Plan; (i) receipt
from the Internal Revenue Service of notice of the failure of 


 


 


13

















 


 


any Pension Plan (or any other Plan
intended to be qualified under Section 401(a) of the Internal Revenue
Code) to qualify under Section 401(a) of the Internal Revenue Code,
or the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue
Code; (j) the imposition of a Lien pursuant to Section 401(a)(29),
412(n) or 430 of the Internal Revenue Code or pursuant to ERISA with
respect to any Pension Plan; (k) the commencement of any administrative
investigation, audit or other administrative proceeding by the Department of
Labor, Internal Revenue Service or other Governmental Authority, including any
voluntary compliance submission through the IRS’s Employee Plans Compliance
Resolution System or the Department of Labor’s Voluntary Fiduciary Correction
Program, in each case, that could reasonably be expected to have a Material
Adverse Effect; or (l) the occurrence of a non-exempt “prohibited
transaction” within the meaning of Section 406 of ERISA or Section 4975
of the Internal Revenue Code.


 


“Eurodollar Base Rate”
means, for any Interest Period with respect to any Eurodollar Rate Loan:


 


(a)           the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the Reuters Screen
LIBOR01 (or any successor thereto) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars in the approximate
amount of the respective Eurodollar Loan being made (for delivery on the first
day of such Interest Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first day of such Interest Period, as the rate of interest for
Dollar deposits for  30-, 60-, 90- or 180-day dollar deposits, as elected by
each Borrower, acting through the Borrower Representative, in the applicable
Loan Notice, or


 


(b)           if the rate referenced in the preceding clause (a) does
not appear on such page or service or such page or service shall not
be available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of such
Interest Period) in the approximate amount of the respective Eurodollar Loan
being made with a term equivalent to such Interest Period, determined as of
approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period, or


 


(c)           if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum (rounded upward to the next 1/100th of 1%)
determined by the Administrative Agent as the rate of interest at which
deposits in Dollars for delivery on the first day of such Interest Period in
same day funds in the approximate amount of the Eurodollar Rate Loan being
made, continued or converted by Societe Generale and with a term equivalent to
such Interest Period would be offered by Societe Generale’s London Branch to
major banks in the London interbank eurodollar market at their request at
approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first day of such Interest Period.


 


 


14

















 


 


“Eurodollar Determination
Date” means in relation to any determination of the Eurodollar Rate for any
Interest Period, the date which is two (2) Business Days prior to the
first day of the relevant Interest Period.


 


“Eurodollar
Rate” means for any Interest Period with respect to any Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent on each
Eurodollar Determination Date to be equal to the quotient obtained by dividing (a) the
Eurodollar Base Rate for such Eurodollar Loan for such Interest Period by (b) one
(1) minus the Eurodollar Reserve Percentage for such Eurodollar
Loan for such Interest Period.


 


“Eurodollar
Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.


 


“Eurodollar
Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places)
in effect on such day, whether or not applicable to any Lender, under
regulations issued from time to time by the FRB for determining the maximum reserve
requirement (including any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency
liabilities”).  The Eurodollar Rate
for each outstanding Eurodollar Rate Loan shall be adjusted automatically as of
the effective date of any change in the Eurodollar Reserve Percentage.


 


“Event
of Default” has the meaning specified in Section 9.01.


 


“Exchange
Act” means the Securities Exchange Act of 1934.


 


“Excluded
Account” means (i) any accounts used solely for the purpose of cash
collateralizing letters of credit permitted pursuant to Section 7.01(f),
(ii) ACI’s checking accounts numbers 15222381 and 48912594 in Citibank,
N.A., provided that the aggregate amount in deposit shall not exceed at any
time an aggregate amount of $25,000 in cash or cash equivalents, and (iii) any
deposit account that is used solely for payment of payroll, bonuses and other
compensation related expenses.


 


 “Excluded Customer Capital Expenditures”
means, for any period for the Consolidated Group on a consolidated basis
(without duplication), the product of (a) Customer Capital Expenditures,
and (b) the Excluded Customer Capex Percentage.


 


“Excluded
Customer Capex Percentage” means (i) for calculations of Consolidated
Fixed Charges for periods ending as of the first three Fiscal Quarters of 2008,
100%; (ii) for calculations of Consolidated Fixed Charges for periods
ending as of the fourth Fiscal Quarter of 2008, and the first and second Fiscal
Quarters of 2009, 75%; (iii) for calculations of Consolidated Fixed
Charges for periods ending as of the third and fourth Fiscal Quarters of 2009
and the first Fiscal Quarter of 2010, 50%; (iv) for calculations of
Consolidated Fixed Charges for periods ending as of the second, third and
fourth Fiscal Quarters of 2010, 25%; and (v) for calculations of
Consolidated Fixed Charges for periods ending as of all Fiscal Quarters
beginning with the first Fiscal Quarter of 2011 through the Maturity Date, 0%.


 


 


15

















 


 


“Excluded
Assets” means (i) assets owned by any Loan Party and subject to
collocation agreements, license agreements or lease agreements entered into in
the ordinary course of business and which by their terms prohibit such Loan Party
from granting a Lien upon such assets, the amount of such assets not to exceed
$5,000,000 in the aggregate at any time, (ii) assets owned or provided by
ACI under the Managed Telecommunications Services Agreement by and between
Merrill Lynch, Pierce, Fenner & Smith Incorporated and ACI and dated
January, 2005 (as amended from time to time pursuant to purchase orders), and (iii) vehicles
owned or leased by any Loan Party.


 


“Facilities”
means, at any time, the facilities and real properties owned, leased, managed
or operated by any Loan Party or any Domestic Subsidiary, from which any Loan
Party or any Domestic Subsidiary provides or furnishes goods or services.


 


“Fair
Share” has the meaning set forth in Section 10.06.


 


“Fair
Share Contribution Amount” has the meaning set forth in Section 10.06.


 


“FCC”
means the Federal Communications Commission, or any governmental agency
succeeding to the functions thereof.


 


“FCC
Licenses” means the licenses, authorizations, waivers and permits required
under the Communications Act necessary for the Loan Parties and the Domestic
Subsidiaries to own and operate their properties and their businesses.


 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight federal funds transactions with members of
the Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Societe General on
such day on such transactions as determined by the Administrative Agent, in its
sole discretion.


 


“Fee
Letter” means the letter agreement dated as of February 29, 2008,
among the Borrowers and the Administrative Agent.


 


“FIRREA”
means the Financial Institutions Reform Recovery and Enforcement Act.


 


“Fiscal
Quarter” means a fiscal quarter of any Fiscal Year.


 


“Fiscal
Year” means the fiscal year of the Loan Parties and their Domestic
Subsidiaries ending on December 31 of each calendar year.


 


 


16

















 


 


“Following
Business Day Convention” means a contractual provision or provision of
applicable Laws pursuant to which a scheduled date for payment or performance
of an obligation, which date is not a Business Day, is extended to the first
following day that is a Business Day.


 


“Foreign
Lender” has the meaning specified in Section 3.01(d).


 


“Foreign
Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.


 


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


 


“Funding
Guarantor” has the meaning specified in Section 10.06.


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently
applied and as in effect from time to time.


 


“Governmental
Approvals” means any and all licenses, permits, certificates,
certifications, consents, registrations or contracts, authorizations and
approvals of each Governmental Authority issued or required under Laws
applicable to the business of any Borrower or any of its Domestic Subsidiaries
or necessary in the sale, furnishing, or delivery of goods or services under
Laws applicable to the business of any Borrower or any of its Domestic
Subsidiaries.


 


“Governmental
Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body,
court, administrative tribunal, tribal, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government, including, without limitation, any
PUC.


 


“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person.  The amount of
any 


 


 


17

















 


 


Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related primary
obligation, or portion thereof, in respect of which such Guarantee is made or,
if not stated or determinable, the maximum reasonably anticipated liability in
respect thereof as determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has a
corresponding meaning.


 


“Guaranteed
Obligations” has the meaning set forth in Section 10.01.


 


“Guarantor”
means each of (i) any Person who executes an Assignment and Assumption
Agreement agreeing to be a guarantor subject to Article X hereof
and (ii) and any Domestic Subsidiaries created by any of the Borrowers in
accordance with Section 6.12(b) hereof, determined to be a
Guarantor by the Administrative Agent.


 


“Guarantor
Payment” has the meaning set forth in Section 13.02(g).


 


“Guaranty”
means the guaranty made by each Guarantor in favor of the Administrative Agent
and the Lenders pursuant to Article X.


 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, lead-based paint, toxic mold or fungus, radon gas,
infectious wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.


 


“Hedge
Agreement” means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


“Hedge
Party” means any Person that is a counterparty to a Hedge Agreement with a
Loan Party.


 


“Holdings”
has the meaning specified in the introductory paragraph hereto.


 


“Honor
Date” has the meaning set forth in Section 2.03(c)(i).


 


 


18

















 


 


“Indebtedness” means, as
to any Person at a particular time, without duplication, all of the following,
whether or not included as indebtedness or liabilities in accordance with GAAP:


 


(a)           all obligations (whether subordinated or not) for borrowed
money, whether current or long-term (including the Obligations) and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;


 


(b)           all purchase money indebtedness;


 


(c)           the principal portion of all obligations under conditional
sale or other title retention agreements relating to Property purchased by such
Person (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business);


 


(d)           the maximum amount available to be drawn under the
uncollateralized portion of letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments;


 


(e)           all obligations in respect of the deferred purchase price
of Property or services (other than trade accounts payable in the ordinary
course of business not past due more than one hundred and eighty (180) days
other than those being contested in good faith, in the ordinary course of
business and for which adequate reserves have been provided in accordance with
GAAP);


 


(f)            Attributable Indebtedness in respect of Capital Leases;


 


(g)           all preferred stock or other Equity Interest providing for
mandatory redemptions, sinking fund or like payments prior to the Maturity
Date;


 


(h)           all obligations or interests of others of the types
referred to in clauses (a) through (g) above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on, or payable out of the proceeds of production
from, Property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed;


 


(i)            the Termination Value of any Secured Hedge Agreement;


 


(j)            any Securitization Transaction; and


 


(k)           all Guarantees with respect to obligations or interests of
the types specified in clauses (a) through (j) above of
another Person.


 


“Indemnified
Liabilities” has the meaning set forth in Section 12.05.


 


“Indemnitees”
has the meaning set forth in Section 12.05.


 


 


19

















 


 


“Information”
has the meaning set forth in Section 12.08(a).


 


“Insurance
Proceeds” means the proceeds generated by payments made by any insurance
company to any Borrower, as a result of the occurrence of an insurable loss
with respect to an asset of such Borrower.


 


“Interest Payment Date” means (a) as to any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such Eurodollar Rate
Loan and the Maturity Date, as applicable; provided, however,
that if any Interest Period for a Eurodollar Rate Loan exceeds three (3) months,
the respective dates that fall every three (3) months after the beginning
of such Interest Period shall also be Interest Payment Dates; and (b) as
to any Base Rate Loan, the last Business Day of each March, June, September and
December and the Maturity Date.


 


“Interest
Period”  means, as to each Eurodollar Rate
Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed
or converted to or continued as a Eurodollar Rate Loan and ending on the date (i) in
the event of automatic conversion from Base Rate Loan to Eurodollar Rate Loan,
or automatic continuation of a Eurodollar Rate Loan, in each case pursuant to Section 2.02(a) hereof,
one (1) month thereafter, and (ii) in all other cases, one (1), two
(2), three (3) or six (6) months thereafter, as selected by the
Borrower Representative in its Loan Notice; provided that:


 


(a)           any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day;


 


(b)           any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of such
Interest Period; and


 


(c)           no Interest Period shall extend beyond the Maturity Date.


 


“Interim Pre Closing
Financial Statements” means, collectively, the unaudited consolidated
financial statements and the related consolidated statements of income or
operations, shareholders’ equity and cash flows of the Borrowers and the
Guarantors, in each case for the fiscal quarter ended September 30, 2007.


 


“Internal
Revenue Code” means the Internal Revenue Code of 1986.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, by means of (a) the purchase or other acquisition of any of
the Equity Interest of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of Indebtedness of or equity participation or interest in, another
Person, or (c) an Acquisition.  For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.


 


 


20
















 


“Involuntary
Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any Property of any Loan Party.


 


“IP
Rights” has the meaning set forth in Section 5.17.


 


“IP
Security Acknowledgment” has the meaning given to that term in the Security
Agreement.


 


“IRS”
means the United States Internal Revenue Service.


 


“IRU”
means an indefeasible right to use Dark Fiber or telecommunications capacity,
as applicable.


 


“IRU
Agreement” means an agreement granting an IRU.


 


“ISP”
means, with respect to any standby Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).


 


“Issuer
Documents” means with respect to any Letter of Credit, the Letter Credit
Application and any other document, agreement and instrument entered into by
the applicable L/C Issuer and the Borrower Representative on behalf of the
Borrowers or in favor of such L/C Issuer and relating to any such Letter of
Credit.


 


“Joinder
Agreement” means a joinder agreement substantially in the form of Exhibit E-1
or Exhibit E-2 executed and delivered by a Domestic Subsidiary in
accordance with the provisions of Section 6.12 or by any other
Person intended to become a Borrower or a Guarantor hereunder.


 


“Knowledge” means, with respect
to any Person, the actual knowledge of such Person.  References to the “Knowledge of the Loan
Parties” (or similar terms) means the actual knowledge of any Responsible
Officer, general counsel of the Loan Parties or, for the purposes of Sections
5.09 and 6.03, shall include any senior vice-president of
operations, chief operating officer or similar position.


 


“Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, compacts, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any Unreimbursed L/C Amount in accordance with its Pro Rata
Share.


 


21

















 


“L/C
Credit Extension” means, with respect to any Letter of Credit or L/C
Guaranty, the issuance thereof or extension of the expiry date thereof, or the
increase of the amount thereof.


 


“L/C
Exposure” means, as of any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit and L/C Guaranties (without
duplication) plus the aggregate of all Unreimbursed L/C Amounts.  For all purposes of this Agreement, if as of
any date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount that remains available to be drawn.


 


 “L/C Guaranty” has the meaning specified
in Section 2.03(a).


 


“L/C
Issuer” has the meaning specified in Section 2.03(a).


 


“Lender”
means each Person identified as a “Lender” on the signature pages hereto
and its successors and assigns and, as the context requires, includes the L/C
Issuer.


 


“Lender
Parties” has the meaning specified in Section 12.07(g).


 


“Lender
Securitization” has the meaning specified in Section 12.07(g).


 


 “Lending Office” means, as to any
Lender, the office or offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify the Borrower Representative and the Administrative
Agent.


 


“Letter
of Credit” means any letter of credit issued hereunder.  A Letter of Credit may be a commercial letter
of credit or a standby letter of credit.


 


“Letter
of Credit Application” means an application and agreement for the issuance
or amendment of a letter of credit in the form from time to time in use by the
L/C Issuer.


 


“Letter
of Credit Expiration Date” means the Maturity Date (or, if such day is not
a Business Day, the next preceding Business Day).


 


“Letter
of Credit Fee” has the meaning specified in Section 2.03(i).


 


“Letter
of Credit Obligations” means all outstanding obligations incurred by Administrative
Agent and the Revolving Lenders at the request of any Borrower, whether direct
or indirect, contingent or otherwise, due or not due, in connection with the
issuance of Letters of Credit by any L/C Issuer, the issuance by the
Administrative Agent of an L/C Guaranty or the purchase of a participation as
set forth in Section 2.03 with respect to any Letter of Credit or
L/C Guaranty.  The amount of such Letter
of Credit Obligations shall equal the maximum amount that may be payable by
Administrative Agent or the Revolving Lenders in respect of all outstanding
Letters of Credit and, without duplication, L/C Guaranties plus all
Unreimbursed L/C Amounts.


 


22

















 


“Letter
of Credit Sublimit” means an amount equal to the lesser of (a) the
total Revolving Commitments and (b) $5,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the total Revolving Commitments.


 


“Lien”
means any mortgage, pledge, hypothecation, collateral assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, and any financing lease having substantially the same economic
effect as any of the foregoing).


 


“Loan”
means an extension of credit by a Lender to any Borrower under Article II
in the form of a Term Loan, Delayed Draw Loan and/or a Revolving Loan.


 


“Loan
Documents” means this Agreement, each Note, each Letter of Credit,
each  Joinder Agreement, each Collateral
Document, each Request for Credit Extension, each Issuer Document, each
Compliance Certificate, the Fee Letter, and each other document, instrument or
agreement from time to time executed by any Loan Party or any Domestic
Subsidiary or any Responsible Officer thereof and delivered in connection with
the transactions contemplated by this Agreement other than the Closing
Checklist.


 


“Loan
Notice” means a notice of (a) a Borrowing of Revolving Loans, (b) a
Borrowing of Delayed Draw Loans; (c) a conversion of Loans from one Type
to the other pursuant to Section 2.02(a), or (d) a
continuation of Eurodollar Rate Loans pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.


 


“Loan
Parties” means, collectively, each Borrower and each Guarantor.


 


“Master
Agreement” has the meaning set forth in the definition of “Hedge
Agreement.”


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent), or condition (financial or otherwise) or prospects of the Loan
Parties and their Domestic Subsidiaries taken as a whole; (b) a material
impairment of the ability of the Loan Parties, taken as a whole, to perform
their obligations under the Loan Documents; (c) a material adverse effect
upon the legality, validity, binding effect or enforceability against any Loan
Party of any Loan Document to which it is a party which could have a material
adverse effect on the ability of the Administrative Agent or the Lenders to be
repaid under the Loan Documents or enforce their rights or exercise their
remedies under the Loan Documents; or (d) a material adverse effect on the
validity, perfection or priority of a Lien in favor of the Administrative Agent
for the benefit of the Secured Parties on any material  Collateral
or on the aggregate value of the Collateral.


 


“Material
Contract” means any lease of real or personal property, contract or other
arrangement to which any Loan Party or any of its Domestic Subsidiaries is a
party (other than the Loan Documents), for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a
Material Adverse Effect.


 


23

















 


“Maturity
Date” means the earlier to occur of the (i) fifth anniversary of the
Closing Date and (i) the declaration of acceleration of all amounts
outstanding under the Loan Documents.


 


“Maximum
Rate” has the meaning set forth in Section 12.10.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in
Sections 4001(a)(3) or 3(37) of ERISA that is sponsored or maintained
by any Borrower or any ERISA Affiliate or to which any Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
six (6) plan years, has made or been obligated to make contributions.


 


“Net
Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds
received by any Loan Party or any Domestic Subsidiary in respect of any
Disposition, Involuntary Disposition, Equity Issuance, or Debt Issuance net of (a) direct
costs and expenses incurred in connection therewith (including legal,
accounting and investment banking fees, and sales commissions), (b) taxes
paid or payable as a result thereof, and (c) the amount necessary to
retire any Indebtedness secured by a Permitted Lien on the related Property; it
being understood that “Net Cash Proceeds” shall include any cash or Cash
Equivalents received upon the sale or other disposition of any non cash
consideration received by any Borrower or any Domestic Subsidiary in any Disposition,
Involuntary Disposition, Equity Issuance or Debt Issuance.


 


“Net
Total Funded Debt Ratio” means, as of any date, the ratio of (a) (i) Consolidated
Indebtedness as of such date plus (ii) Consolidated Lease
Obligations minus (iii) Unrestricted Cash, after giving effect to
the Borrowing on such Borrowing Date to (b) Consolidated EBITDA based on
the most recent Compliance Certificate received by the Administrative Agent
pursuant to Section 6.02(b).


 


“New
Loan Commitments” shall have the meaning given to the term in Section 2.15(a) hereof.


 


“NLC
Effective Date” shall mean the date on which the New Loan Commitments
become effective pursuant to Section 2.15(d) hereof.


 


“Non-Core
Assets” shall mean the assets owned by the Loan Parties or their Domestic Subsidiaries,
which are designated exclusively to serve the Consolidated Group’s
Telecommunications Business in the metropolitan areas of Austin, Denver, Kansas
City, Miami, Portland, Salt Lake City, San Antonio, and Wilmington.


 


“Non-Extension
Notice Date” has the meaning set forth in Section 2.03(b)(iii).


 


“Note”
or “Notes” means each Term Note, each Delayed Draw Note and each
Revolving Note, individually or collectively, as appropriate.


 


24

















 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit (including Unreimbursed L/C Amounts),
whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including, without limitation, interest and fees and expenses of professional
advisers to the Lenders and Agents that accrue after the commencement by or
against any Loan Party of any proceeding under any Debtor Relief Laws naming
such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.  The foregoing shall also include any
obligations or liabilities of any Loan Party under any Secured Hedge Agreement.


 


“Obligee
Guarantor” has the meaning set forth in Section 10.08.


 


“Organization
Documents” means, (a) with respect to any corporation, the, charter,
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


 


“Other
Taxes” has the meaning set forth in Section 3.01(b).


 


“Participant”
has the meaning set forth in Section 12.07(d).


 


“Patriot
Act” has the meaning specified in Section 5.27.


 


 “PBGC” means the Pension Benefit
Guaranty Corporation or any successor thereto.


 


“Pension
Plan” means any Plan, other than a Multiemployer Plan, that is subject to
Title IV of ERISA and is sponsored or maintained by any Borrower or any
ERISA Affiliate or to which any Borrower or any ERISA Affiliate contributes or
has an obligation to contribute, or in the case of a multiple employer or other
plan described in Section 4064(a) of ERISA, has made contributions at
any time during the immediately preceding six (6) plan years.


 


“Permitted
Acquisition” has the meaning given to that term in Section 7.04(b) hereof.


 


“Permitted
Equity Repurchases” mean purchases of Equity Interest of Holdings from
employees and directors of Holdings and its Subsidiaries in an aggregate amount
not to exceed $15,000,000 in the aggregate.


 


“Permitted
Liens” means, at any time, Liens in respect of Property of the Loan Parties
and their Domestic Subsidiaries permitted to exist at such time pursuant to the
terms of Section 7.01.


 


25

















 


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


 


“Plan”
means (i) any “employee benefit plan” as defined in Section 3(3) of
ERISA which is or was sponsored, maintained or contributed to by, or required
to be contributed by the Borrowers, any of their Domestic Subsidiaries or any
of their respective ERISA Affiliates; and (ii) all other employee benefit
plans, programs, policies, agreements or arrangements, including any deferred
compensation plan, incentive plan, bonus plan or arrangement, stock option
plan, stock purchase plan, stock award plan or other equity-based plan, change
in control agreement, retention plan, severance pay plan, dependent care plan,
sick leave, disability, death benefit, group insurance, hospitalization,
dental, life, any fund, trust or arrangement providing health benefits
including multiemployer welfare arrangements, a multiple employer welfare fund
or arrangement, cafeteria plan, employee assistance program, scholarship
program, employment contract, retention incentive agreement, termination
agreement, severance agreement, non-competition agreement, consulting
agreement, confidentiality agreement, vacation policy, employee loan, or other
similar plan, agreement or arrangement, whether written or oral, funded or
unfunded, or actual or contingent which is or was sponsored, maintained or
contributed to by, or required to be contributed by, the Borrowers, any of
their Domestic Subsidiaries or any of their respective ERISA Affiliates, but
does not include any plan, agreement or arrangement that has been terminated
and completely wound up prior to the date of this Agreement and for which none
of the Borrowers, any of their Domestic Subsidiaries or their respective ERISA
Affiliates have any present or potential liability.


 


“Principal
Amortization Schedule” has the meaning set forth in Section 2.07(b)(i).


 


 “Principal Payment Date” means, as to
any Term Loan or Delayed Draw Loan, the last Business Day of each March, June, September and
December, and the Maturity Date, with the first Principal Payment Date
occurring on June 30, 2009.


 


 “Pro Rata Share” means, with respect to
any Lender at any time, (a) with respect to such Lender’s Revolving
Commitment and L/C Exposure at any time, a fraction (expressed as a percentage,
carried out to the ninth decimal place), the numerator of which is the amount
of the Revolving Commitment of such Lender at such time and the denominator of
which is the amount of the total Revolving Commitments at such time; provided
that if commitments of each Lender to make Revolving Loans have been terminated
pursuant to Section 2.06(a) or Section 9.02, then
the Pro Rata Share of each Lender shall be determined based on the Pro Rata
Share of such Lender immediately prior to such termination and after giving
effect to any subsequent assignments made pursuant to the terms hereof, (b) with
respect to such Lender’s Delayed Draw Commitment at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Delayed Draw Commitment of such Lender
at such time and the denominator of which is the amount of the total Delayed
Draw Commitments at such time; provided that if commitments of each
Lender to make Delayed Draw Loans have been terminated pursuant to Section 9.02,
then the Pro Rata Share of each Lender shall be a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the principal amount of the outstanding Delayed Draw Loans held by such Lender
and the denominator of which is the aggregate outstanding principal amount of
the 


 


26

















 


Delayed Draw Loans held by all Delayed
Draw Lenders at such time, and (c) with respect to the outstanding Term
Loan at any time, a fraction (expressed as a percentage, carried out to the
ninth decimal place), the numerator of which is the principal amount of the
outstanding Term Loan held by such Lender at such time and the denominator of
which is the aggregate outstanding principal amount of the Term Loan held by
all Term Loan Lenders at such time.  The
initial Pro Rata Share of each Lender is set forth opposite the name of such
Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.  In connection with any payment to any
Defaulting Lender hereunder based upon its Pro Rata Share, such Pro Rata Share
shall be ratably reduced by the principal amount such Defaulting Lender has
failed to fund hereunder.


 


“Proceedings”
means any actual or threatened civil, equitable or criminal proceeding
litigation, action, suit, claim, investigation (governmental or judicial or
otherwise), dispute indictment or prosecution, pleading, demand or the
imposition of any fine or penalty or similar matter.


 


“Property”
means any interest of any kind in any property or asset, whether real, personal
or mixed, or tangible or intangible, including Equity Interest and Telecommunication
Assets.


 


“PUC”
means any state regulatory agency or body that exercises jurisdiction over the
rates or services or the ownership, construction or operation of any long
distance network facility or telecommunications systems or over Persons who
own, construct or operate a long distance network facility or
telecommunications systems, in each case by reason of the nature or type of the
business subject to regulation and not pursuant to laws and regulations of
general applicability to Persons conducting business in such state.


 


“Rating
Agencies” has the meaning set forth in Section 12.08.


 


“Real
Property” means the real estate listed on Schedule 5.20(a), and
any other real estate owned or leased after the Closing Date.


 


“Register”
has the meaning set forth in Section 12.07(c).


 


“Registrar”
has the meaning set forth in Section 12.07(c).


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the thirty-day notice period has been
waived.


 


“Representatives”
has the meaning set forth in Section 12.08(a).


 


“Request
for Credit Extension” means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, as the case may be, and (b) with
respect to an L/C Credit Extension, a Letter of Credit Application.


 


“Required
Lenders” means, (i) at any time there are two (2) or fewer
Lenders, all Lenders, or (ii) at all other times, Lenders holding in the
aggregate more than sixty-six and two thirds percent (66 2/3%) of, (a) the
sum of the Revolving Commitments, the Delayed Draw 


 


27

















 


Commitments and the outstanding Term
Loan, (b) if the Revolving Commitments have been terminated, the sum of
the Revolving Exposures, the Delayed Draw Commitments or, if the Delayed Draw
Commitments have been terminated, the outstanding Delayed Draw Loans and the
outstanding Term Loan or (c) if the Delayed Draw Commitments have been
terminated, the sum of the Revolving Commitments (or, if the Revolving
Commitments have been terminated, the sum of the Revolving Exposures), the
outstanding Delayed Draw Loans and the outstanding Term Loan.  The Revolving Commitments (or, if the
Revolving Commitments have terminated, the Revolving Exposure), the Delayed
Draw Commitments (or, if the Delayed Draw Commitments have terminated, the
outstanding Delayed Draw Loan) and the outstanding Term Loan held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


“Required
PUC Consents” means all consents, orders and approvals of the PUC’s
necessary for Loan Parties and their respective Domestic Subsidiaries to (a) incur
the full amount of the Obligations, and (b) grant to the Administrative
Agent a Lien on all of their respective Property to secure all of such
Obligations, such consents, orders and approvals to be in form and substance
reasonably satisfactory to the Administrative Agent.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer or treasurer of a Loan Party. Any document delivered hereunder that is
executed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or
other action on the part of such Loan Party and such Responsible Officer shall
be conclusively presumed to have acted on behalf of such Loan Party.


 


“Restricted
Cash” has the meaning given to the term in Section 8.01(c).


 


“Restricted
Payment” means (a) any dividend or other distribution, direct or
indirect, on account of any shares (or equivalent) of any class of Equity
Interest of any Loan Party or any of its Domestic Subsidiaries, now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect,
of any shares (or equivalent) of any class of Equity Interest of any Loan Party
or any of its Domestic Subsidiaries, now or hereafter outstanding, except for
Permitted Equity Repurchases,  (c) any
payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares (or equivalent) of any
class of Equity Interest of any Loan Party or any of its Domestic Subsidiaries,
now or hereafter outstanding, and (d) the payment by any Loan Party or any
of its Domestic Subsidiaries of any management, advisory or consulting fee or
the payment of any extraordinary salary, bonus or other form of compensation,
in each case, to any Person who is directly or indirectly a significant
partner, shareholder or owner, or executive officer of any such Loan Party or
Domestic Subsidiary unless such payments are (A) made in the ordinary
course of business and consistent with past practices or (B) approved by
the board of directors of the applicable Loan Party.


 


“Revolver
Unused Commitment Fee” has the meaning specified in Section 2.09(a) hereof.


 


28

















 


“Revolving
Commitment” means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrowers pursuant to Section 2.01 and (b) and
to acquire participations in Letters of Credit pursuant to Section 2.03
in an aggregate principal amount at any one time outstanding not to exceed the
amount set forth opposite such Lender’s name on Schedule 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be reduced pursuant to Section 2.05
or otherwise adjusted from time to time in accordance with this Agreement.  The initial aggregate amount of the Revolving
Commitments is $18,000,000.


 


“Revolving
Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its L/C
Exposure at such time.


 


“Revolving Lenders” or “Revolving
Lender” means, as of any date of determination, Lenders having a Revolving
Commitment, or after the Revolving Commitments have terminated, Lenders holding
any portion of the outstanding Revolving Exposure.


 


“Revolving
Loan” has the meaning specified in Section 2.01(a).


 


“Revolving
Note” has the meaning specified in Section 2.11(a).


 


“Revolving
Unused Commitment” means, at any time, the amount by which the aggregate
Revolving Commitments exceed the sum of (y) the outstanding amount of all
Revolving Loans and (z) the total L/C Exposures.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw
Hill Companies, Inc. and any successor thereto.


 


“Sale
and Leaseback Transaction” means, with respect to any Loan Party or any
Domestic Subsidiary, any arrangement, directly or indirectly, with any Person
whereby such Loan Party or such Domestic Subsidiary 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 being sold or transferred.


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


 


“SEC
Expenses” means the one-time third party out-of-pocket expenses relating
the SEC’s proceedings involving Holdings and/or ACI, including the financial
projections related to Holding’s and/or ACI’s historical audits, in an amount
not to exceed $250,000.


 


 “Secured Hedge Agreement” means any
Hedge Agreement required or permitted by this Agreement that is entered into by
and between a Loan Party and a Secured Hedge Provider.


 


“Secured
Hedge Provider” means (i) the Administrative Agent or any of its
Affiliates (or any Person who was an Affiliate of the Administrative Agent at
the time such Person entered 


 


29

















 


into a Secured Hedge Agreement), and (ii) any
other Lender or Affiliate of a Lender which is approved in writing by the
Administrative Agent as a Secured Hedge Provider (such approval not to be
unreasonably withheld or delayed), each in their capacity as a counterparty to
a Secured Hedge Agreement.


 


“Secured
Parties” means, collectively, the Administrative Agent, all other Agents,
the Lenders, the L/C Issuer and the Secured Hedge Providers.


 


“Securities
Account Control Agreement” shall mean an agreement, among a Loan Party, a
securities intermediary, and the Administrative Agent, which agreement is in a
form reasonably satisfactory to the Administrative Agent and which provides the
Administrative Agent with “control” (as such term is used in Articles 8
and 9 of the UCC) over the securities account(s) described therein.


 


“Securitization
Transaction” means any financing transaction or series of financing
transactions (including factoring arrangements) pursuant to which any Borrower
or any Domestic Subsidiary may sell, convey or otherwise transfer, or grant a security
interest in, accounts, payments, receivables, rights to future lease payments
or residuals or similar rights to payment to a special purpose subsidiary or
affiliate of any Person.


 


 “Security Agreement” means the Security
and Pledge Agreement dated as of the Closing Date executed in favor of the
Administrative Agent by each of the Borrowers.


 


“Social
Security Act” means the Social Security Act of 1965 as set forth in Title
42 of the United States Code, as interpreted by the rules and regulations
issued thereunder, in each case as in effect from time to time.


 


“Societe
Generale” means Societe Generale, and its successors and assigns.


 


“Solvent”
means, with respect to any Person on a particular date, that on such date (a) the
fair value of the assets of such Person exceed its liabilities, including
contingent liabilities, (b) the present fair saleable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liabilities of such Person or its debts as they become absolute and
matured, (c) the remaining capital of such Person is not unreasonably
small to conduct its business, and (d) such Person will not have incurred
debts and does not have the present intent to incur debts, beyond its ability
to pay such debts as they mature.  In
computing the amount of contingent liabilities of any Person on any date, such
liabilities shall be computed at the amount that, in the judgment of the
Administrative Agent, in light of all facts and circumstances existing at such
time, represents the amount of such liabilities that reasonably can be expected
to become actual or matured liabilities.


 


“State
PUC License” means any license, certificate or other authorization issued
by any PUC to permit the Loan Parties or their Domestic Subsidiaries to offer
intrastate telecommunications services in the state.


 


30






 












 


“State
Telecommunications Laws” are the statutes of the states of the United
States and the District of Columbia governing the provision of
telecommunications services and the rules, regulations, and published policies,
procedures, orders and decisions of the PUCs.


 


“Subsidiary”
of a Person means a corporation, partnership, limited liability company or
other business entity of which a majority of the Equity Interest having
ordinary voting power for the election of directors or other governing body
(other than Equity Interest having such power only by reason of the happening
of a contingency) are at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by such Person. 
Unless otherwise specified, all references herein to a “Subsidiary” or
to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Loan
Parties.


 


“Synthetic
Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear
on a balance sheet under GAAP.


 


“Taxes”
has the meaning set forth in Section 3.01(a).


 


“Tax
Credit” has the meaning set forth in Section 3.01(j).


 


“Tax
Refund” has the meaning set forth in Section 3.01(j).


 


“Telecommunications
Assets” means (a) all interests of any Person in any kind of property
or asset, whether real, personal or mixed, tangible or intangible, including
Equity Interest (other than cash and cash equivalents) used in the
Telecommunications Business or (b) the Equity Interest of any person
engaged primarily in the Telecommunications Business.


 


“Telecommunications
Business” means the business of (a) transmitting or providing services
relating to the transmission of voice, video or data through transmission
facilities, (b) leasing of fiber optic infrastructure or related
facilities, (c) constructing, creating, developing or producing
communications networks, related network transmission, equipment, software,
devices and content for use in a communications or content distribution
business or (d) evaluating, participating or pursuing any other activity
or opportunity that is primarily related to (a), (b) or (c) above.


 


“Termination
Date” means the date that (a) all Obligations have been fully and
indefeasibly paid in full in cash, (b) no commitments or other obligations
of the Lenders to provide funds to the Borrowers remain outstanding, (c) no
Letter of Credit remains outstanding, and (d) all Secured Hedge Agreements
have been terminated and each Loan Party’s obligations thereunder have been
fully paid or otherwise Cash Collateralized in a manner satisfactory to the
Secured Hedge Provider.


 


“Termination
Value” means, in respect of any one or more Hedge Agreements, after taking
into account the effect of any legally enforceable netting agreement relating
to such Hedge Agreements, (a) for any date on or after the date such Hedge
Agreements have been closed out and termination value(s) determined in
accordance therewith, such termination 


 


31

















 


value(s), and (b) for any date
prior to the date referenced in clause (a), the amount(s) determined
as the mark-to-market value(s) for such Hedge Agreements, as determined
(by the Secured Hedge Provider for Secured Hedges) based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Hedge Agreements (which may include a Lender or any Affiliate of
a Lender).


 


“Term
Loan” has the meaning specified in Section 2.01(b).


 


“Term
Loan Commitment” means, as to each Lender, its obligation to make its
portion of the Term Loan to the Borrowers pursuant to Section 2.01(b) and
the other terms and conditions of this Agreement, in the principal amount set
forth opposite such Lender’s name on Schedule 2.01, as such amounts
may be adjusted from time to time in accordance with this Agreement.  The initial aggregate amount of the Term Loan
Commitments is $24,000,000.


 


“Term
Loan Lender” means, as of any date of determination, any Lender holding a
Term Loan Commitment or Term Loan at such time.


 


“Term
Note” has the meaning set forth in Section 2.11(a).


 


“Type”
means, with respect to any Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.


 


“UCC”
means the Uniform Commercial Code as in effect in any applicable jurisdiction.


 


“UCP”
means, with respect to any commercial Letter of Credit, the “Uniform Customs
and Practice for Documentary Credits”, as most recently published by the
International Chamber of Commerce.


 


“Uncertificated
Securities Control Agreement” means an agreement in form and substance
satisfactory to the Administrative Agent among the Administrative Agent, a Loan
Party and a pledgor of uncertificated securities which provides the
Administrative Agent with “control” (as such term is used in Articles 8 and 9
of the UCC) of such uncertificated securities (as defined in the UCC).


 


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plan’s assets, determined in accordance with the assumptions used for funding the
Pension Plan pursuant to Section 412 of the Internal Revenue Code for the
applicable plan year.


 


“United
States” and “U.S.” mean the United States of America.


 


“Unreimbursed
L/C Amount” has the meaning specified in Section 2.03(c)(i) but
shall exclude any amount that has been refinanced with Revolving Loans or
subsequently repaid by the Borrowers.


 


“Unrestricted
Cash” means, as of any measurement date, the excess of (a) the
Borrower’s Aggregate Consolidated Cash Balance over (b) the Borrower’s
Restricted Cash.


 


32

















 


“Unused
Commitment Fees” shall mean the Revolver Unused Commitment Fee and the
Delayed Draw Unused Commitment Fee.


 


“Wholly
Owned Subsidiary” means any Person 100% of whose Equity Interest is at the
time owned by a Loan Party directly or indirectly through other Persons 100% of
whose Equity Interest is at the time owned, directly or indirectly, by such a
Loan Party.


 


Section 1.02                 Other Interpretive
Provisions.


 


With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


 


(a)         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, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to all exhibits, schedules, annexes and other
attachments thereto and 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
or in any other Loan Document), (ii) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (iii) the
words “herein,” “hereof” and “hereunder,” and words of
similar import when used in any Loan Document, shall be construed to refer to
such Loan Document in its entirety and not to any particular provision thereof,
(iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, the Loan Document in which such references appear, and (v) the
words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all real and personal property and
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


 


(b)        In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to and including.”


 


(c)         Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


Section 1.03                 Accounting Terms.


 


(a)         Except
as otherwise specifically prescribed herein, all accounting terms not
specifically or completely defined herein shall be construed in conformity 


 


33





















 


with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the most recent Audited Financial Statements.


 


(b)        Together
with each Compliance Certificate, the Borrower Representative will provide a
written summary of any changes in GAAP that materially impact the calculation
of the financial covenants in Article VIII contained in such
Compliance Certificate.  If at any time
any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrowers or the
Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower Representative on behalf of the Borrowers shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided  that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower Representative shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.


 


Section 1.04                 Rounding.


 


Any
financial ratios required to be maintained by the Borrowers pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).


 


Section 1.05                 References to Laws.


 


Unless
otherwise expressly provided herein, references to any Law shall include all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Law and any reference to any Law shall,
unless otherwise specified, refer to such Law as amended, modified or supplemented
from time to time and any successor Law.


 


Section 1.06                 Times of Day.


 


Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).


 


Section 1.07                 Letter of Credit Amounts.


 


Unless
otherwise specified, all references herein to the amount of a Letter of Credit
at any time shall be deemed to mean the maximum face amount of such Letter of
Credit after giving 


 


34

















 


effect to all increases thereof
contemplated by such Letter of Credit or the Issuer Document related thereto,
whether or not such maximum face amount is in effect at such time.


 


ARTICLE II


 


THE COMMITMENTS AND CREDIT
EXTENSIONS


 


Section 2.01                 Loans.


 


(a)         Revolving
Loans:  Subject to the terms and
conditions set forth herein, each Revolving Lender severally agrees to make
loans to the Borrower Representative, upon request by the Borrower
Representative, on behalf of the Borrowers (each such loan, a “Revolving
Loan”) in Dollars from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Revolving Lender’s Revolving Commitment; provided,
however, that after giving effect to any Borrowing of Revolving Loans, (i) the
total Revolving Exposures shall not exceed the total Revolving Commitments and (ii) the
Revolving Exposure of each Revolving Lender shall not exceed such Revolving
Lender’s Revolving Commitment.  Within
the limits of each Revolving Lender’s Revolving Commitment, and subject to the
other terms and conditions hereof, the Borrower Representative on behalf of the
Borrowers may borrow under this Section 2.01(a), prepay under Section 2.05,
and reborrow under this Section 2.01(a).  The Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein; provided, however,
that all Borrowings made on the Closing Date shall be made as Base Rate Loans.


 


(b)        Term
Loan:  Subject to the terms and
conditions set forth herein, each Term Loan Lender severally agrees to fund a
term loan to the Borrower Representative, upon request by the Borrower
Representative, on behalf of the Borrowers (the “Term Loan”), on the
Closing Date (or, in case of an increase in the Term Loan Commitment, as set
forth in Section 2.15(d) hereof, on the NLC Effective Date) in one
Borrowing in an amount not to exceed such Lender’s Term Loan Commitment.  The Term Loan (or any portion thereof) may
consist of Base Rate Loans or Eurodollar Rate Loans, as further provided
herein; provided, however, that all Borrowings made on the
Closing Date shall be made as Base Rate Loans. 
Upon the making of the Term Loan, the aggregate Term Loan Commitments
shall be reduced to zero.  Any portion of
the Term Loan that is repaid or prepaid may not be reborrowed.


 


(c)         Delayed
Draw Loans:  Subject to the terms and
conditions set forth herein, each Delayed Draw Lender severally agrees to fund
a delayed draw loan to the Borrower Representative, upon request by the
Borrower Representative, on behalf of the Borrowers (each such loan, a “Delayed
Draw Loan”) on any Business Day during the Availability Period in one or
several Borrowings, in an aggregate amount at any time outstanding not to
exceed the amount of such Delayed Draw Lender’s Delayed Draw Commitment; provided,
however, that after giving effect to any Borrowing of Delayed Draw
Loans, (i) the total amount outstanding under all Delayed Draw Loans shall
not 


 


35





















 


exceed the total Delayed Draw Commitments and (ii) the amount
outstanding in favor of each Delayed Draw Lender shall not exceed such Delayed
Draw Lender’s Delayed Draw Commitment. The Delayed Draw Loan (or any portion
thereof) may consist of Base Rate Loans or Eurodollar Rate Loans, as further
provided herein; provided, however, that all Borrowings made on
the Closing Date shall be made as Base Rate Loans.  Any portion of the Delayed Draw Loan that is
repaid or prepaid may not be reborrowed.


 


Section 2.02                 Borrowings, Conversions and
Continuations of Loans.


 


(a)         Each
Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower
Representative’s irrevocable notice to the Administrative Agent, which may be
delivered by telephone request (or such other means as may be agreed upon by
the Administrative Agent in its sole discretion).  Each such notice must be received by the
Administrative Agent in writing not later than 10:00 a.m. New York time (i) three
(3) Business Days prior to the requested date of any Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) one (1) Business
Day prior to the requested date of any Borrowing of Base Rate Loans (or any
conversion to Base Rate Loans).  Each
telephonic notice by the Borrower Representative pursuant to this Section 2.02(a) must
be confirmed promptly by delivery to the Administrative Agent of a written Loan
Notice, appropriately completed and executed by a Responsible Officer of the
Borrower Representative. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof. 
Subject to Section 2.03(c) with respect to Revolving
Loans resulting from Letters of Credit which have been drawn upon, each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof.  Each Loan Notice pursuant to this Section 2.02(a) (whether
telephonic or written) shall specify (i) whether the Borrower
Representative is requesting a Borrowing, a conversion of Loans from one Type
to the other, or a continuation of Eurodollar Rate Loans, (ii) the
requested date of the Borrowing, conversion or continuation, as the case may be
(which shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be borrowed or
to which existing Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto.  If the Borrower Representative fails to
specify a Type of Loan in a Loan Notice (other than a Loan Notice given for
Loans to be disbursed on the Closing Date, which shall be made as Base Rate
Loans) or if the Borrower Representative fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be
made as, or automatically converted to, Eurodollar Rate Loans.  Any such automatic conversion shall be
effective as of the last day of the Interest Period then in effect with respect
to the applicable Eurodollar Rate Loans. 
If the Borrower Representative requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one (1) month.


 


36





















 


(b)        Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower
Representative as required by Section 2.02(a) with respect to
any continuation of a Eurodollar Rate Borrowing, the Administrative Agent shall
notify each Lender of the details of any automatic conversion of such
Eurodollar Rate Borrowing to Base Rate Loans as described in the preceding
subsection.  In the case of a Borrowing,
each Lender shall make the amount of its Loan available to the Administrative
Agent in immediately available funds at the Administrative Agent’s Office not
later than 3:00 p.m. New York time on the Business Day specified in the
applicable Loan Notice.  Upon
satisfaction of the conditions set forth in Section 4.02 (and, if
such Borrowing is the initial Credit Extension, Section 4.01), the
Administrative Agent shall make all funds so received available to the
Borrowers in like funds as received by the Administrative Agent by wire
transfer of such funds, in each case in accordance with instructions provided
to (and reasonably satisfactory to) the Administrative Agent by the Borrower
Representative; provided, however, that if, on the date of a
Borrowing of Revolving Loans, there are Unreimbursed L/C Amounts outstanding,
then the proceeds of such Borrowing shall be applied, first, to the
payment in full of any such Unreimbursed L/C Amounts, and second, to the
Borrower Representative as provided above.


 


(c)         Except
as otherwise provided herein, a Eurodollar Rate Loan may be continued or
converted only on the last day of the Interest Period for such Eurodollar Rate
Loan.  During the existence of a Default,
no Loans may be requested as, converted to or continued as Eurodollar Rate
Loans without the consent of the Required Lenders, and the Administrative Agent
may cause, or the Required Lenders may demand that, any or all of the then
outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.


 


(d)        the
Administrative Agent shall promptly notify the Borrower Representative and the
Lenders of the interest rate applicable to any Interest Period for Eurodollar
Rate Loans upon determination of such interest rate.  The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.


 


(e)         After
giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more
than five (5) Interest Periods in effect with respect to outstanding
Loans.


 


Section 2.03                 Letters of Credit.


 


(a)         The
Letter of Credit Commitment.


 


(i)            Subject
to the terms and conditions of this Agreement, the Administrative Agent and
Revolving Lenders agree to incur, from time to time prior to the Letter of
Credit Expiration Date, upon the request of the Borrower 


 


37





















 


Representative and for the account of a Borrower, Letter of Credit Obligations
by causing Letters of Credit to be issued in Dollars by (i) the
Administrative Agent (or an Affiliate thereof), (ii) a Revolving Lender
(or an Affiliate thereof) selected by or acceptable to the Administrative Agent
or (iii) a bank or other legally authorized Person selected by or
acceptable to the Administrative Agent in its sole discretion and guaranteed by
the Administrative Agent (a “L/C Guaranty”) (each of (i) through
(iii), an “L/C Issuer”); provided that after giving effect to the
incurrence of any Letter of Credit Obligation with respect to any Letter of
Credit, (x) the total Revolving Exposures shall not exceed the total
Revolving Commitments, (y) the Revolving Exposure of any Lender shall not
exceed such Lender’s Revolving Commitment, and (z) the total L/C Exposures
shall not exceed the Letter of Credit Sublimit. 
Each request by the Borrower Representative for the issuance or
amendment of a Letter of Credit shall be deemed to be a representation by the Borrowers
that the L/C Credit Extension so requested complies with the conditions set
forth in the proviso in the preceding sentence. 
Each Revolving Lender shall be deemed to have, and hereby agrees to
have, irrevocably purchased risk participations in all such Letters of Credit
Obligations incurred and any drawings in connection therewith.  Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower Representative’s ability to
obtain Letters of Credit for the account of any Borrower or any Domestic
Subsidiary of any Borrower shall be fully revolving, and accordingly the
Borrower Representative may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.


 


(ii)           The
Administrative Agent shall have no obligation to provide any L/C Guaranty, and
the L/C Issuer shall not issue any Letter of Credit if:


 


(A)               subject
to Section 2.03(b)(iii), the expiry date of such requested Letter
of Credit would occur more than twelve months after the date of issuance or
last renewal, unless the Required Lenders (excluding any Term Loan from the
definition thereof) have approved such expiry date;


 


(B)                the
expiry date of such requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Revolving Lenders have approved such
expiry date;


 


(iii)          The
Administrative Agent shall have no obligation to provide any L/C Guaranty, and
the L/C Issuer shall not issue any Letter of Credit if:


 


(A)               any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the L/C Issuer from issuing such Letter
of Credit, or any Law applicable to the L/C Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the L/C Issuer
refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the L/C Issuer with respect to such
Letter of Credit any restriction, reserve or capital requirement (for 


 


38





















 


which the L/C Issuer is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good faith deems material to it;


 


(B)                the
issuance of such Letter of Credit would violate any Laws or one or more
policies of the L/C Issuer;


 


(C)                except
as otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter
of Credit is in an initial amount less than $100,000;


 


(D)                such
Letter of Credit is to be denominated in currency other than Dollars; or


 


(E)                a
default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower
Representative or such Lender to eliminate the L/C Issuer’s risk with respect
to such Lender.


 


(iv)          The
L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.


 


(v)           The
L/C Issuer shall not be under any obligation to amend any Letter of Credit if
the beneficiary of such Letter of Credit does not accept the proposed amendment
to such Letter of Credit.


 


(vi)          The
L/C Issuer shall not be under any obligation to issue or amend any Letter of Credit
if the L/C Issuer has received written notice from any Lender, the
Administrative Agent or any Loan Party, on or prior to the Business Day prior
to the requested date of issuance or amendment of such Letter of Credit, that
one or more applicable conditions contained in Article IV shall not
then be satisfied.


 


(b)        Procedures
for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.


 


(i)            Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower Representative delivered to the L/C Issuer (with a copy
to the Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and executed by a Responsible Officer of the Borrower
Representative on behalf of the Borrowers or any Domestic Subsidiary of any
Borrower.  Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 10:00 a.m. at least two (2) Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance
date or 


 


39





















 


date of amendment, as the case may be. 
In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer:  (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; (G) the account party thereunder and (H) such
other matters as the L/C Issuer may reasonably require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to the L/C Issuer:  (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may reasonably require. 
Additionally, the Borrower Representative shall furnish to the L/C
Issuer and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including
any Issuer Documents, as the L/C Issuer or the Administrative Agent may
reasonably require.


 


(ii)           Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower Representative and, if not, the L/C Issuer will provide the
Administrative Agent with a copy thereof. 
Unless the L/C Issuer has received written notice from any Revolving
Lender, the Administrative Agent or any Loan Party, at least one Business Day
prior to the requested date of issuance or amendment of the applicable Letter
of Credit, that one or more applicable conditions in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof,
the L/C Issuer shall, on the requested date, issue a Letter of Credit for the
account of the applicable Borrower or Domestic Subsidiary of a Borrower or
enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letter
of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer or Administrative
Agent, as applicable a participation interest in such Letter of Credit or the
underlying L/C Guaranty, as applicable, in an amount equal to the product of
such Revolving Lender’s Pro Rata Share times the face amount of such
Letter of Credit.


 


(iii)          If
the Borrower Representative so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of
Credit must permit the L/C Issuer to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the


 


40
















 


time such Letter of Credit is issued. 
Unless otherwise directed by the L/C Issuer, the Borrower Representative
shall not be required to make a specific request to the L/C Issuer for any such
extension.  Once an Auto-Extension Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it
would not be permitted, or would have no obligation at such time to issue such
Letter of Credit in its revised (as extended) form under the terms hereof (by
reason of the provisions clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is five (5) Business Days before the
Non-Extension Notice Date from the Administrative Agent, any Revolving Lender
or any Loan Party that one or more of the applicable conditions specified in Section 4.02
is not then satisfied, and in each such case directing the L/C Issuer not to
permit such extension.


 


(iv)          Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the L/C Issuer will also deliver to the Borrower Representative and the
Administrative Agent a true and complete copy of such Letter of Credit or
amendment.


 


(c)         Drawings
and Reimbursements; Funding of Participations.


 


(i)            Upon
receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall promptly notify the Borrower Representative
and the Administrative Agent thereof. 
Not later than 1:00 p.m. on the date of any payment by the L/C
Issuer under a Letter of Credit (or, if such payment by the L/C Issuer is made
after 1:00 p.m., not later than 9:00 a.m. the next succeeding
Business Day) (each such date, an “Honor Date”), the Borrowers shall
reimburse the L/C Issuer through the Administrative Agent in an amount equal to
the amount of such drawing or shall reimburse the Administrative Agent in
respect of any payment under the L/C Guaranty issued in respect of such Letter
of Credit.  If the Borrowers fail to so
reimburse the L/C Issuer or the Administrative Agent by such time, the
Administrative Agent shall promptly notify each Revolving Lender of the Honor
Date, the amount of the unreimbursed Letter of Credit drawing or L/C Guaranty
payment (each, an “Unreimbursed L/C Amount”), and the amount of such
Revolving Lender’s Pro Rata Share thereof. 
In such event, the Borrowers shall be deemed to have requested a
Borrowing of Revolving Loans consisting of Base Rate Loans to be disbursed on
the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the
principal amount of Revolving Loans consisting of Base Rate Loans and
regardless of whether a Default or Event of Default then exists or whether the
conditions set forth in Section 4.02 have been satisfied, but
subject to the amount of the unutilized portion of the total Revolving
Commitments.  If the Unreimbursed Amount
is paid on the Honor Date with a Revolving Loan, no Default or Event of 


 


41





















 


 


Default shall be deemed to have occurred.  Any notice delivered by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may
be delivered by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


(ii)           If
for any reason a Revolving Loan cannot be made pursuant to Section 2.03(c)(i),
each Revolving Lender (including any Revolving Lender acting as the L/C Issuer)
shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent’s Office in an amount equal to its Pro Rata Share
of the Unreimbursed L/C Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon each
Revolving Lender that so makes funds available shall be deemed to have made a
payment in respect of its participation in the applicable Letter of Credit or
L/C Guaranty and such payment shall constitute an L/C Advance from such
Revolving Lender in satisfaction of its participation obligations under this Section 2.03.  The Administrative Agent shall remit the
funds so received to the L/C Issuer. Any Unreimbursed Amounts not fully
refinanced by the Revolving Loans pursuant to Section 2.03(c)(i) shall
be due and payable on demand (together with interest) and shall bear interest
at the Default Rate.


 


(iii)          Until
a Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit or to
reimburse the Administrative Agent for any payment of an L/C Guaranty, interest
in respect of such Revolving Lender’s Pro Rata Share of such amount shall be
solely for the account of the L/C Issuer or the Administrative Agent, as
applicable.


 


(iv)          Each
Revolving Lender’s obligation to make Revolving Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit or to
reimburse the Administrative Agent for any payment under an L/C Guaranty, as
applicable, as contemplated by this Section 2.03(c), shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other
right which such Revolving Lender may have against the L/C Issuer, any Loan
Party or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default or an Event of Default; or (C) any other
occurrence, event or condition, whether or not similar to any of the
foregoing.  No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrowers to
reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer
under any Letter of Credit, together with interest as provided herein.


 


(v)           If
any Revolving Lender fails to make available to the Administrative Agent for
its own account or for the account of the L/C Issuer any amount required to be
paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.03(c) by
the time specified in Section 2.03(c)(ii), the L/C 


 


42





















 


Issuer or the Administrative Agent shall be entitled to recover from
such Revolving Lender (acting through the Administrative Agent), on demand,
such amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the Federal Funds Rate from time to time in
effect.  A certificate of the L/C Issuer
submitted to any Revolving Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (v) shall be conclusive
absent manifest error.


 


(d)        Repayment
of Participations.


 


(i)            At
any time after the L/C Issuer has made a payment under any Letter of Credit or
the Administrative Agent has made any payment under and L/C Guaranty and has
received from any Revolving Lender such Revolving Lender’s L/C Advances in
respect of such Revolving Lender’s participation in accordance with Section 2.03(c),
if the Administrative Agent receives for its own account or for the account of
the L/C Issuer any payment in respect of the related Unreimbursed L/C Amount or
interest thereon (whether directly from the Borrowers or otherwise, including
proceeds of cash collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Revolving Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Revolving Lender’s L/C Advance was
outstanding) in the same funds as those received by the Administrative Agent.


 


(ii)           If
any payment received by the Administrative Agent for its own account or for the
account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 12.06
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Revolving Lender shall pay to the Administrative Agent for
its own account or for the account of the L/C Issuer its Pro Rata Share thereof
on demand of the Administrative Agent, plus interest thereon from the
date of such demand to the date such amount is returned by such Revolving
Lender, at a rate per annum equal to the Federal Funds Rate from time to time
in effect.


 


(e)         Obligations
Absolute.  The obligation of the
Borrowers to reimburse the L/C Issuer for each drawing under each Letter of
Credit or to reimburse the Administrative Agent for any payment under an L/C
Guaranty or to reimburse each Revolving Lender for its payment on account of
any Unreimbursed L/C Amount shall be absolute, unconditional and irrevocable,
and shall be paid strictly in accordance with the terms of this Agreement under
all circumstances, including the following:


 


(i)            any
lack of validity or enforceability of such Letter of Credit, this Agreement or
any other Loan Document;


 


(ii)           the
existence of any claim, counterclaim, set-off, defense or other right that any
Loan Party or Domestic Subsidiary may have at any time against 


 


43





















 


any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting), the
L/C Issuer or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;


 


(iii)          any
draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document required in order to
make a drawing under such Letter of Credit;


 


(iv)          any
payment by the L/C Issuer under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such
Letter of Credit; or any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or


 


(v)           any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, any Loan Party or any Domestic
Subsidiary.


 


The
Borrower Representative shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it; and, if there is any claim of
noncompliance with the Borrower Representative’s instructions or other
irregularity, the Borrower Representative will immediately notify the L/C
Issuer and the Administrative Agent. 
Each Borrower shall be conclusively deemed to have waived any such claim
against the L/C Issuer and its correspondents unless such notice is delivered
as aforesaid.


 


(f)         Role
of L/C Issuer.  Each Revolving Lender
and each Borrower agrees that (x) in paying any drawing under a Letter of
Credit, the L/C Issuer, or (y) in issuing any L/C Guaranty, the
Administrative Agent, shall not have any responsibility to obtain any document
(other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy
of any such document or the authority of the Person executing or delivering any
such document.  None of the L/C Issuer,
any Agent-Related Person nor any of the respective correspondents, participants
or assignees of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application.  Each
Borrower and each 


 


44





















 


Domestic Subsidiary of a Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to the use of any
Letter of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude any Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement.  None of the L/C
Issuer, any Agent-Related Person, nor any of the respective correspondents,
participants or assignees of the L/C Issuer, shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrowers may have a claim against the L/C Issuer, and the
L/C Issuer may be liable to the Borrowers, to the extent, but only to the
extent, of any direct, as opposed to consequential, punitive or exemplary,
damages suffered by the Borrowers which the Borrowers prove were caused by the
L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit as finally determined by a court
of competent jurisdiction.  In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


 


(g)        Cash
Collateral.  Upon the request of the
Administrative Agent, if, as of the Letter of Credit Expiration Date, any
Letter of Credit or L/C Guaranty for any reason remains outstanding and
partially or wholly undrawn, the Borrowers shall immediately Cash Collateralize
105% of the total L/C Exposures as of such date.  Section 2.05 and 9.02(c) set
forth certain additional requirements to deliver cash collateral hereunder.  For purposes of this Section 2.03,
Section 2.05 and Section 9.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent (or with and to a bank designated by the Administrative
Agent to be held in a deposit account subject to a control agreement), for the
benefit of the L/C Issuer or the Administrative Agent and the Revolving
Lenders, as collateral for the total L/C Exposures, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders).  Derivatives of the
term Cash Collateralize have corresponding meanings.  The Borrowers hereby grant to the
Administrative Agent, for the benefit of the L/C Issuer, the Administrative
Agent and the other Secured Parties, a security interest in all such cash,
deposit accounts and all balances therein pledged, deposited with or delivered
to the Administrative Agent and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Societe General.


 


(h)        Applicability
of ISP98 and UCP.  Unless otherwise
expressly agreed by the L/C Issuer and the Borrower Representative when a
Letter of Credit is 


 


45





















 


issued, (i) the rules of the ISP shall apply to each standby
Letter of Credit and (ii) the rules of the UCP shall apply to each
commercial Letter of Credit.


 


(i)          Letter
of Credit Fees.  The Borrowers shall
pay to the Administrative Agent for the account of each Revolving Lender in
accordance with its Pro Rata Share a Letter of Credit fee (the “Letter of
Credit Fee”) for each Letter of Credit equal to the Applicable Margin for
Revolving Loans that are Eurodollar Rate Loans times the daily maximum
amount available to be drawn under such Letter of Credit (whether or not such
maximum amount is then in effect under such Letter of Credit).  Letter of Credit Fees shall be (i) computed
on a quarterly basis in arrears and (ii) due and payable on the last
Business Day of each March, June, September and December, commencing with
the first such date to occur after the issuance of such Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand.  If there is any change in the Applicable
Margin during any quarter, the daily maximum amount of each Letter of Credit
shall be computed and multiplied by the Applicable Margin separately for each
period during such quarter that such Applicable Margin was in effect.  Notwithstanding anything to the contrary
contained herein, while an Event of Default exists, all Letter of Credit Fees
shall accrue at the Default Rate.


 


(j)          Fronting
Fee and Documentary and Processing Charges Payable to L/C Issuer.  The Borrowers shall pay directly to the L/C
Issuer for its own account a one time fronting fee for each Letter of Credit in
the amount and at the times agreed to by the Borrower and the L/C Issuer.  In addition, the Borrowers shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


(k)         Conflict
with Letter of Credit Application. 
In the event of any conflict between the terms hereof and the terms of
any Letter of Credit Application, the terms hereof shall control.


 


(l)          Letters
of Credit Issued for Domestic Subsidiaries. 
Notwithstanding that a Letter of Credit issued or outstanding hereunder
is in support of any obligations of, or is for the account of, a Domestic
Subsidiary of the Borrowers, the Borrowers shall be obligated to reimburse the
L/C Issuer or the Administrative Agent hereunder for any and all drawings under
such Letter of Credit or any L/C Guaranty related to such Letter of Credit, as
the case may be.  The Borrowers hereby
acknowledge that the issuance of Letters of Credit or any L/C Guaranty for the
account of any such Domestic Subsidiary inures to the benefit of the Borrowers
and that the Borrowers’ business derives substantial benefits from the
businesses of such Domestic Subsidiaries.


 


Section 2.04         Reserved.


 


Section 2.05         Prepayments.


 


46





















 


(a)         Voluntary
Prepayments of Loans.


 


(i)            Revolving
Loans; Delayed Draw Loans and Term Loan. 
Subject to the limitations set forth in this Section 2.05(a),
the Borrowers may, upon notice from the Borrowers to the Administrative Agent,
at any time or from time to time voluntarily prepay Revolving Loans, Delayed
Draw Loans and/or the Term Loan in whole or in part, subject to a one percent
(1%) prepayment fee on the principal amount of the Delayed Draw Loan or Term
Loan prepaid by the Borrowers within one (1) year as of the Closing Date; provided
that (i) such notice must be received by the Administrative Agent not
later than 10:00 a.m. New York time (A) three (3) Business Days
prior to any date of prepayment of Eurodollar Rate Loans, and (B) on the
date of prepayment of Base Rate Loans; and (ii) any such prepayment of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding); (iii) any such prepayment of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof (or, if less, the entire principal amount thereof
then outstanding).  Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid.  The Administrative
Agent will promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s Pro Rata Share of such prepayment.  If such notice is delivered by the Borrowers,
the Borrowers shall make such prepayment and the payment amount specified in
such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loan
and/or Base Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05
and any prepayment fee and, if all outstanding Loans are being prepaid in full,
any costs, fees and expenses payable under the Loan Documents as of the date of
such prepayment.  Notwithstanding the
foregoing, the Borrowers may not voluntarily prepay any Loans that are
Eurodollar Rate Loans unless such Loans are prepaid at the end of the applicable
Interest Period or unless the Borrowers pay all funding costs associated with
such prepayment as provided in Section 3.05 hereof.


 


(ii)           Application
of Voluntary Prepayments of Revolving Loans, Delayed Draw Loans and Term Loan.  At the Borrowers’ option, each voluntary
prepayment shall be applied to Revolving Loans, Delayed Draw Loans and/or the
Term Loan.  Any voluntary prepayment of
the Term Loan and the Delayed Draw Loans shall be applied pro rata to the then
remaining scheduled payments of the Term Loan and/or the Delayed Draw Loan, as
applicable under the Principal Amortization Schedule. Prepayments of Revolving
Loans or of the Delayed Draw Loans pursuant to this Section 2.05(a) shall
not reduce the total Revolving Commitments or the Delayed Draw
Commitments.  Each prepayment under this Section 2.05(a) shall
be applied to the outstanding principal of the Loans of each Lender in
accordance with such Lender’s Pro Rata Share.


 


47





















 


(b)        Mandatory
Prepayments of Loans.


 


(i)            Total
Revolving Exposure.  If for any
reason the total Revolving Exposures at any time exceed the total Revolving
Commitments then in effect, the Borrowers shall immediately prepay the
Revolving Loans and/or Cash Collateralize the L/C Exposures in an aggregate
amount equal to such excess (each such prepayment to be applied as set forth in
clause (v) below).


 


(ii)           Dispositions.  The Borrowers shall prepay the Loans and Cash
Collateralize the L/C Exposures, on a pro rata basis, as hereinafter provided
in an aggregate amount equal to 100% of the Net Cash Proceeds of any
Disposition (each such prepayment to be applied as set forth in clause (v) below)
other than Dispositions permitted pursuant to Sections 7.05(a) or
(b).  Notwithstanding the
foregoing, if:


 


(A)          no Default or Event of Default has occurred and is
continuing and the Borrower Representative delivers to the Administrative Agent
a certificate, executed by the Borrower Representative’s chief financial
officer, stating that during the ninety (90) days prior to the receipt of such
Net Cash Proceeds the Borrower made Capital Expenditures (within the limits set
forth in this Agreement) to purchase assets used or useful in the Businesses
and that the assets so acquired are subject to a first priority security
interest under the Collateral Documents, then the amount of such Capital
Expenditures may be deducted by the Borrowers from the amount of the prepayment
they are required to make under this Section 2.05(b)(ii) and


 


(B)           at the time of the receipt or application of such Net Cash
Proceeds no Default or Event of Default has occurred and is continuing and the
Borrower Representative delivers to the Administrative Agent a certificate,
executed by the Borrower Representative’s chief financial officer, that it
intends within one hundred and eighty (180) days after receipt thereof to use
all of such Net Cash Proceeds to purchase assets used or useful in the
Businesses, then the applicable Borrower shall be authorized to purchase such
assets;


 


provided, however,
that (i) the Net Cash Proceeds set forth in this Section 2.05(b)(ii) shall
be held in a Blocked Account until such time as such Net Cash Proceeds are used
to purchase such assets or are applied to the Obligations upon the occurrence
of any Event of Default, as the case may be, (ii) any such Net Cash
Proceeds not so used within such one hundred and eighty (180) day period
shall, on the first Business Day immediately following such period, be applied
as a prepayment in accordance with clause (v) below and (iii) any
assets so acquired shall be subject to a first priority security interest under
the Collateral Documents.


 


(iii)          Debt
Issuances.  Immediately upon receipt
by any Loan Party or any Domestic Subsidiary of the Net Cash Proceeds of any Debt
Issuance (other than proceeds of Indebtedness permitted to be incurred under Section 7.03),
the 


 


48





















 


Borrowers shall prepay an aggregate principal amount of Loans and Cash
Collateralize the L/C Exposures, on a pro rata basis, in an amount equal to one
hundred percent (100%) of all such Net Cash Proceeds or other amounts received
(such prepayment to be applied as set forth in clause (v) below).


 


(iv)          Casualty/Condemnation
Events.  Each Borrower shall pay or
cause to be paid to the Administrative Agent, as a prepayment of the principal
of the Loans and Cash Collateralize the L/C Exposures, on a pro rata basis, one
hundred percent (100%) of the proceeds of insurance policies and condemnation
awards paid to such Borrower in excess of $500,000 with respect to any single
award, within five (5) Business Days after the receipt of such proceeds by
such Borrower; provided, however, that,


 


(A)          if no Default or Event of Default has occurred and is
continuing and the Borrower Representative delivers to the Administrative Agent
a certificate, executed by the Borrower Representative’s chief financial
officer, stating that during the ninety (90) days prior to the receipt of such
proceeds the Borrower made Capital Expenditures (within the limits set forth
herein) to purchase assets used or useful in the Businesses and that the assets
so acquired are subject to a first priority security interest under the
Collateral Documents, then the amount of such Capital Expenditures may be
deducted by the Borrowers from the amount of such proceeds which are to be used
for the prepayment set forth herein; and


 


(B)           such proceeds of insurance policies and condemnation
awards shall not be required to be paid to the Administrative Agent and applied
as such a prepayment under the following circumstances:  if (w) such proceeds are utilized within
one hundred eighty (180) days after receipt thereof by such Borrower to the
replacement, reconstruction or restoration of the assets which were the subject
of the insurance loss or award, as certified by the Borrower Representative’s
chief financial officer, (x) no Default or Event of Default has occurred
and is continuing at the time of such receipt or prior to the reconstruction or
restoration of such assets or the acquisition of such replacement assets, (y) prior
to being applied to acquire such new assets, such proceeds are deposited into a
Blocked Account, and (z) such new assets purchased shall be subject to a
first priority security interest under the Collateral Documents.


 


(v)           Application
of Mandatory Prepayments.  All
amounts required to be paid pursuant to this Section 2.05(b) shall
be applied as follows:


 


(A)          with respect to all amounts prepaid pursuant to Section 2.05(b)(i),
(x) to the Revolving Loans to the full extent thereof and, (y) after
all Revolving Loans have been repaid, to Cash Collateralize any L/C Exposures;
and


 


49





















 


(B)           with respect to all amounts prepaid pursuant to Sections 2.05(b)(ii) through
(iv), first to the prepayment of principal outstanding on the Term Loan
and the Delayed Draw Loans, applied pro rata to the remaining scheduled
amortization payments thereof, based on the Principal Amortization Schedule, second,
after all Term Loans and Delayed Draw Loans have been repaid, to the prepayment
of the principal amount outstanding of the Revolving Loans, and third, after
all Revolving Loans have been repaid, to Cash Collateralize any L/C Exposures.


 


Within the parameters of the
applications set forth above, prepayments shall be applied first to Base Rate
Loans and then to Eurodollar Rate Loans in direct order of Interest Period
maturities. All prepayments under this Section 2.05(b) shall
be subject to Section 3.05 and, for prepayments of Delayed Draw
Loans and the Term Loan, the prepayment fee set forth in Section 2.05(a)(i) hereof,
but otherwise without premium or penalty, and shall be accompanied by a payment of (i) all
interest accrued on the principal amount prepaid through the date of
prepayment, (ii) Unused Commitment Fees accrued on the amount of Revolving
Unused Commitments or Delayed Draw Unused Commitments through the date of
prepayment, and (iii) all unpaid fees and expenses due under the Loan
Documents on the date of prepayment. Prepayments of Revolving Loans under Sections
2.05(b)(ii) to (iv) shall be applied to reduce the
Revolving Commitment of each Revolving Lender according to its Pro Rata Share
of the amount by which such prepayments reduce the amount of principal outstanding
under the Revolving Loans.


 


Section 2.06         Termination
or Reduction of Revolving Commitments and Delayed Draw Commitments.


 


(a)         The
Borrowers may, upon prior written notice from the Borrower Representative to
the Administrative Agent, terminate the total Revolving Commitments or from
time to time permanently reduce the total Revolving Commitments; provided,
however, that (a) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. on the Business Days prior
to the date of termination or reduction, (b) any such partial reduction
shall be in an aggregate amount of $1,000,000 or any whole multiple of $100,000
in excess thereof, and (c) after giving effect to any reduction of the
total Revolving Commitments, the total Revolving Commitments shall not be less
than the total Revolving Exposures.  The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the total Revolving Commitments.  Any reduction of the total Revolving
Commitments shall be applied to the Revolving Commitment of each Lender
according to its Pro Rata Share.  All
fees accrued with respect thereto until the effective date of any termination
of the total Revolving Commitments shall be paid on the effective date of such
termination. The Revolving Commitments may also be reduced pursuant to
mandatory prepayments as set forth in Section 2.05(b).


 


50




















 


(b)        The
Delayed Draw Commitments shall be permanently reduced (i) by the amount of
each Borrowing made by the Delayed Draw Lenders with respect to the Delayed
Draw Commitment, (ii) by the amount of any repayment by the Borrowers
which reduces the principal amount outstanding under the Delayed Draw Loans to
zero, and (iii) to the extent all or a portion of the Delayed Draw
Commitments remain undrawn on the expiration of the Availability Period for the
Delayed Draw Loans.


 


Section 2.07                 Repayment
of Loans.


 


(a)         Revolving
Loans.  On the Maturity Date, the
Borrowers shall repay to the Administrative Agent for the ratable benefit of
the Lenders the aggregate principal amount of all Revolving Loans outstanding
on such date.


 


(b)        Delayed Draw Loans and Term Loan. The Borrowers shall
pay the principal amount of the Term Loan and each Delayed Draw Loan:


 


(i)            prior
to the Maturity Date, on each Principal Payment Date, commencing on the first
Principal Payment Date, being June 30, 2009, and through the last
Principal Payment Date corresponding to the year 2012, in an amount equal to
the product of: (I) the percentage applicable to each Fiscal Quarter
pursuant to the principal amortization percentage schedule (“Principal
Amortization Schedule”) described below, and (II) the aggregate amount
of the Term Loan and Delayed Draw Loan funded as of the applicable Principal
Payment Date, net of any prepayments in respect of the Term Loan or the Delayed
Draw Loan made pursuant to Section 2.05. The Principal Amortization
Schedule is set forth below:


 


	
  Fiscal
  Quarters

  	
   

  	
  Principal Amortization per Fiscal Quarter

  	
   

  
	
  2008
  - Each Fiscal Quarter

  	
   

  	
  0

  	
  %

  
	
  1st Fiscal Quarter of 2009

  	
   

  	
  0

  	
  %

  
	
  Each
  of the 2nd, 3rd and 4th Fiscal Quarters of 2009

  	
   

  	
  3

  	
  %

  
	
  2010
  - Each Fiscal Quarter

  	
   

  	
  3

  	
  %

  
	
  2011
  - Each Fiscal Quarter

  	
   

  	
  3

  	
  %

  
	
  1st Fiscal Quarter of 2012

  	
   

  	
  3

  	
  %

  
	
  Each
  of the 2nd, 3rd and 4th Fiscal Quarters of 2012

  	
   

  	
  4

  	
  %

  



 


(ii)           on
the Maturity Date, in an amount equal to the unpaid principal balance of the
Delayed Draw Loan and Term Loan then outstanding, together with all other
amounts due and payable.


 


Section 2.08                 Interest.


 


(a)         Subject
to the provisions of subsection (b) below:


 


51

















 


(i)    each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each day during each Interest Period applicable thereto, commencing
on and including the first day of such Interest Period to, but excluding, the
last day of such Interest Period for each Interest Period at a rate per annum
equal to the sum of (A) the Eurodollar Rate for such Interest Period plus
(B) the Applicable Margin; and


 


(ii)   each
Base Rate Loan shall bear interest on the outstanding principal amount thereof
for the period from and including the applicable Borrowing Date or date of conversion
to a Base Rate Loan to, but excluding, the Maturity Date, or to, but excluding,
the conversion date if such Loans are earlier converted into Eurodollar Rate
Loans from the applicable borrowing or conversion date at a rate per annum
equal to (A) the Base Rate plus (B) the Applicable Margin.


 


(b)        After
the occurrence and during the continuation of an Event of Default pursuant to (i) Section 9.01(f) or
(ii) at the election of the Administrative Agent (or upon written request
of the Required Lenders), pursuant to any other subsection of Section 9.01,
the principal amount of all Obligations (including all Loans, Unreimbursed L/C
Amounts, interest payments thereon not paid when due and any fees and other
amounts then due and payable under any Loan Document) shall thereafter bear
interest, payable on demand, at a fluctuating interest rate per annum at all
times equal to the Default Rate to the fullest extent permitted by applicable
Laws.


 


(c)         Interest
shall be due and payable in arrears:


 


(i)    (A) for
Eurodollar Rate Loans, on each Interest Payment Date and on the Maturity Date;
and (B) for Base Rate Loans, quarterly on each Interest Payment Date and
on the Maturity Date, and


 


(ii)   (A) from
and including the Closing Date until, but excluding, the first Interest Payment
Date, (B) as of the first Interest Payment Date, from and including, each
Interest Payment Date until but excluding the next Interest Payment Date, (C) on
any date of prepayment, with respect to the principal amount of Loans being
prepaid and (D) on the Maturity Date.


 


Interest accrued on any other Obligations
shall be due and payable as provided in the Loan Documents and, if no payment
date is specified, shall be due and payable on demand.  Notwithstanding the foregoing, interest accrued
at the Default Rate shall be due and payable on demand. Interest hereunder
shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Law (whether or not allowed in such proceeding).


 


52

















 


Section 2.09                 Fees.


 


(a)         Revolver Unused Commitment Fee.  The Borrowers shall pay, or cause to be paid,
to the Administrative Agent for the account of each Revolving Lender in accordance
with its Pro Rata Share, an unused commitment fee equal to (the “Revolver
Unused Commitment Fee”):


 


(i)            during
such time where the Revolving Unused Commitment is less than or equal to fifty
(50%) of the total Revolving Commitments, the product of one-half percent
(.50%) per annum multiplied by the actual daily amount of the Revolving Unused
Commitment;


 


(ii)           during such time where the Revolving Unused Commitment is
greater than fifty (50%) of the total Revolving Commitments, the product of
three-quarters of one percent (.75%) per annum multiplied by the actual daily
amount of the Revolving Unused Commitment;


 


(b)        Delayed
Draw Unused Commitment Fee. The Borrowers shall pay, or cause to be paid,
to the Administrative Agent for the account of each Delayed Draw Lender in
accordance with its Pro Rata Share, an unused commitment fee equal to (the “Delayed
Draw Unused Commitment Fee”):


 


(i)            during
such time where the Delayed Draw Unused Commitment is equal to or less than
fifty (50%) of all Delayed Draw Commitments, the product of one-half percent
(.50%) per annum multiplied by the actual daily amount of the Delayed Draw
Unused Commitment;


 


(ii)           during
such time where the Delayed Draw Unused Commitment is greater than fifty (50%)
of the total Delayed Draw Commitments, the product of three-quarters of one
percent (.75%) per annum multiplied by the actual daily amount of the Delayed
Draw Unused Commitment;


 


The Unused Commitment Fees shall accrue at
all times during the Availability Period, including at any time during which
one or more of the conditions in Article IV is not met, and shall
be due and payable (I) quarterly in arrears on the last Business Day of
each of March, June, September and December, commencing with the first
such date to occur after the Closing Date, and (II) on the Maturity Date.


 


(c)         Other Fees.


 


(i)            The
Borrowers shall pay, or cause to be paid, to the Administrative Agent for its
own account fees in the amounts and at the times specified in the Fee
Letter.  Such fees shall be fully earned
when paid and shall be non-refundable for any reason whatsoever.


 


(ii)           The
Borrowers shall pay, or cause to be paid, to the Agents or to any Agent-Related
Person such fees as shall have been separately agreed upon 


 


53

















 


between any of the Loan Parties and/or any of the Agents or
Agent-Related Persons, in the amounts and at the times so specified.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


Section 2.10                 Computation of Interest and
Fees.  Interest on
Eurodollar Rate Loans shall be calculated on the basis of a 360-day year and
actual days elapsed.  Interest on Base
Rate Loans and computation of fees shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for the actual days elapsed.  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.


 


Section 2.11                 Evidence
of Debt.


 


(a)         The
Credit Extensions made by each Lender shall be evidenced by one or more
accounts or records maintained by such Lender and by the Administrative Agent
in the ordinary course of business.  The
accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrowers and the interest and payments
thereon.  Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrowers hereunder to pay any amount owing with respect to the Obligations.  In the event of any conflict between the
accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest
error.  Upon the request of any Lender
made through the Administrative Agent, the Borrowers shall execute and deliver
to such Lender (through the Administrative Agent) a promissory note, which shall
evidence such Lender’s Loans in addition to such accounts or records.  Each such promissory note shall (i) in
the case of Revolving Loans, be substantially in the form of Exhibit B-1
(a “Revolving Note”), (ii), in the case of a Term Loan, be substantially
in the form of Exhibit B-2 (a “Term Note”) and (iii), in the
case of a Delayed Draw Loan, be substantially in the form of Exhibit B-3
(a “Delayed Draw Note”).  Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect
thereto, but any failure to do so shall not limit or otherwise affect the
Borrowers’ Obligations hereunder.


 


(b)        In
addition to the accounts and records referred to in subsection (a), each
Lender and the Administrative Agent shall maintain in accordance with its usual
practice accounts or records evidencing the purchases and sales by such Lender
of participations in Letters of Credit or L/C Guaranties, as applicable.  In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts
and records of any Lender in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error.


 


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Section 2.12                 Payments
Generally.


 


(a)         All
payments to be made by the Borrowers of principal, interest, fees and other
Obligations shall be absolute and unconditional and shall be made without
condition or deduction for any counterclaim, defense, recoupment, setoff or
rescission.  Except as otherwise
expressly provided herein, all payments by the Borrowers hereunder shall be
made to the Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the Administrative Agent’s Office in Dollars and
in immediately available funds not later than 12:00 p.m. New York time on
the date specified herein.  The
Administrative Agent will promptly distribute to each Lender its Pro Rata Share
(or other applicable share as provided herein) of such payment in like funds as
received by wire transfer to such Lender’s Lending Office.  All payments received by the Administrative
Agent after 12:00 p.m. New York time shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.


 


(b)        If
any payment to be made by the Borrowers shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and
such extension of time shall be reflected in computing interest or fees, as the
case may be.


 


(c)         Prior
to an Event of Default, if at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
Unreimbursed L/C Amounts, interest and fees then due hereunder, such funds
shall be applied


 


(i)    first,
toward costs and expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Administrative Agent,


 


(ii)   second,
toward costs and expenses (including funding losses and Attorney Costs and
amounts payable under Article III) incurred by the Lenders, ratably
among the parties entitled thereto in accordance with the amounts of costs and
expenses then due to such parties,


 


(iii)  third,
toward repayment of interest and fees (including any prepayment fee, Unused
Commitment Fee or any fees due and payable under the Fee Letter) then due
hereunder with respect to the Term Loan and Delayed Draw Loan ratably among the
parties entitled thereto, in accordance with the amounts of interest and fees
then due to such parties,


 


(iv)  fourth,
toward repayment of interest and fees (including any Unused Commitment Fee)
then due hereunder with respect to the Revolving Loans and Unreimbursed L/C
Amounts (first, to Unreimbursed
L/C Amounts to the full extent thereof and then to the Revolving Loans),
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties,


 


55

















 


(v)   fifth,
toward repayment of principal with respect to the Term Loan and Delayed Draw
Loan then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties, and


 


(vi)  sixth,
toward repayment of principal on the Revolving Loans and Unreimbursed L/C
Amounts (first, to Unreimbursed L/C Amounts to the full extent thereof and then
to the Revolving Loans), then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal then due to such parties.


 


(d)        Unless
any Borrower or any Lender has notified the Administrative Agent, prior to the
date any payment is required to be made by it to the Administrative Agent
hereunder, that any Borrower or such Lender, as the case may be, will not make
such payment, the Administrative Agent may assume that the Borrowers or such
Lender, as the case may be, has timely made such payment and may (but shall not
be so required to), in reliance thereon, make available a corresponding amount
to the Person entitled thereto.  If and
to the extent that such payment was not in fact made to the Administrative
Agent in immediately available funds, then:


 


(i)            if
any Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the portion of such assumed payment that was
made available to such Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date such amount
was made available by the Administrative Agent to such Lender to the date such
amount is repaid to the Administrative Agent in immediately available funds at
the Federal Funds Rate from time to time in effect; and


 


(ii)           if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available
funds, together with interest thereon for the period from the date such amount
was made available by the Administrative Agent to the Borrowers to the date
such amount is recovered by the Administrative Agent (the “Compensation
Period”) at a rate per annum equal to the Federal Funds Rate from time to
time in effect.  If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in the applicable Borrowing.  If such Lender does not pay such amount
forthwith upon the Administrative Agent’s demand therefor, the Administrative
Agent may make a demand therefor upon the Borrowers, and the Borrowers shall
pay such amount to the Administrative Agent, together with interest thereon for
the Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable Borrowing. 
Nothing herein shall be deemed to relieve any Lender from its obligation
to fulfill its Revolving Commitment, Delayed Draw Commitment or to prejudice
any rights which the Administrative Agent or the Borrowers may have against any
Lender as a result of any default by such Lender hereunder.


 


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(iii)          In
the event that any Lender fails to make available to the Administrative Agent
such Lender’s Pro Rata Share of any Borrowing by the Borrowers in accordance
with the provisions of this Section 2.02 hereof, and the Borrowers
do not repay to the Administrative Agent such Lender’s Pro Rata Share of the
Borrowing within three (3) Business Days after such Borrowing, the
Administrative Agent shall have the right to recover such Lender’s Pro Rata
Share of the Borrowing directly from such Lender, together with interest
thereon from the date of the Borrowing at the rate per annum applicable to such
Borrowing.  In addition, until the
Administrative Agent recovers such amount, (x) such Lender shall not be
entitled to receive any payments under Section 2.05, Section 2.07
or 2.08 hereof, and (y) for purposes of voting on or consenting to
other matters with respect to this Agreement or the other Loan Documents, such
Lender’s Commitment shall be deemed to be zero and such Lender shall not be
considered to be a Lender.


 


A
notice of the Administrative Agent to any Lender or the Borrower Representative
with respect to any amount owing under this subsection (d) shall be
conclusive, absent manifest error.


 


(e)         If
any Lender makes available to the Administrative Agent funds for any Loan to be
made by such Lender as provided in the foregoing provisions of this Article II,
and such funds are not made available to the Borrowers by the Administrative
Agent because the conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, then the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


(f)         The
obligations of the Lenders hereunder to make Loans are several and not
joint.  The failure of any Lender to make
any Loan or to fund any such participation on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender to
so make its Loan or purchase its participation.


 


(g)        Nothing
herein shall be deemed to obligate any Lender to obtain the funds for any Loan
in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.


 


Section 2.13                 Sharing of Payments.  If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it,
or L/C Exposures held by it, any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in excess of its
Pro Rata Share (or other share contemplated hereunder) thereof, such Lender
shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase
from the other Lenders such participations in the Loans made by them, and/or
such subparticipations in L/C Exposures held by them, as shall be necessary to
cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described
in 


 


57

















 


Section 12.06 (including
pursuant to any settlement entered into by the purchasing Lender in its
discretion), such purchase shall to that extent be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price paid therefor,
together with an amount equal to such paying Lender’s ratable share (according
to the proportion of (i) the amount of such paying Lender’s required
repayment to (ii) the total amount so recovered from the purchasing
Lender) of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered, without further interest
thereon.  The Borrowers agree that any
Lender so purchasing a participation from another Lender may, to the fullest
extent permitted by law, exercise all its rights of payment (including the
right of set-off, but subject to Section 12.09) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrowers in the amount of such participation. 
The Administrative Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under
this Section 2.13 and will in each case notify the Lenders
following any such purchases or repayments. 
Each Lender that purchases a participation pursuant to this Section shall
from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.


 


Section 2.14                 Handling
of Proceeds of Collateral; Cash Dominion.


 


(a)         Collection
of Accounts and Other Proceeds.  The
Borrowers, at their expense, will enforce and collect payments and other
amounts owing on all Accounts in the ordinary course of the Borrowers’ business
subject to the terms hereof.  The
Borrowers agree to direct all of their account debtors to send payments on all
Accounts directly to one or more Blocked Accounts.  Notwithstanding the foregoing, should any
Borrower ever receive any payment on an Account or other proceeds of the sale
of Collateral, including checks, cash, receipts from credit card sales and
receipts, notes or other instruments or property with respect to any
Collateral, such Borrower agrees to hold such proceeds in trust for the benefit
of the Administrative Agent and separate from such Borrower’s other property
and funds, and to deposit such proceeds directly into a Blocked Account within
three (3) Business Days. Upon the written request of the Administrative
Agent each Borrower shall provide the Administrative Agent any statements or
accounts summary made available to it as holder of the Blocked Accounts.


 


(b)        Transfer
of Funds from Blocked Accounts. 
During a Cash Control Period, the Administrative Agent shall have the
right, at the Administrative Agent’s election in its sole discretion, to
require that funds on deposit in any Blocked Account be transferred to the
Administrative Agent’s Bank Account or such other account as may be designated
by the Administrative Agent on each Business Day, and the Borrowers agree to
take all actions required by the Administrative Agent or by any bank at which
any Blocked Account is maintained in order to effectuate the transfer of funds
in this manner. In the event any Deposit Account Control Agreement is
terminated, or is likely to be terminated, by any of the parties with respect
to a Blocked Account, the Borrowers agree to take all actions reasonably
required by the Administrative Agent or 


 


58

















 


by any Lender, in order to effectuate the transfer of the funds in such
Blocked Account to another Blocked Account or a new account subject to a
Deposit Account Control Agreement and which will constitute a Blocked Account.
No checks, drafts or other instruments received by the Administrative Agent
shall constitute final payment to the Administrative Agent unless and until
such instruments have actually been collected.


 


(c)         New
Blocked Accounts.  Each Borrower
agrees not to open any new bank account into which proceeds of Collateral are
to be delivered or deposited unless concurrently with the opening of such bank
account, the Borrowers enter into a Deposit Account Control Agreement with
respect to such bank account.  Upon
compliance with the terms set forth above, such bank account shall constitute a
Blocked Account for purposes of this Agreement. 
Notwithstanding anything to the contrary in this Section 2.14(c),
the Borrowers may maintain one or more accounts constituting Excluded Accounts.


 


(d)        Collective
Borrowing Arrangement.  The Borrowers
have informed the Administrative Agent that: 
(i) in order to increase the efficiency, profitability and
productivity of each Borrower, the Borrower Representative has established a
centralized cash management system for the Borrowers that entails, in part,
central disbursement and operating accounts for each of the Borrowers in which
the Borrower Representative provides the working capital needs of each of the
other Borrowers and manages and timely pays the accounts payable of each of the
other Borrowers; (ii) the Borrower Representative further enhances the
operating efficiencies of the other Borrowers by purchasing, or causing to be
purchased, in the Borrower Representative’s name for its account, all or
substantially all materials, supplies, inventory and services required by the
other Borrowers, resulting in a reduction in operating costs of the other
Borrowers; and (iii) all of the Borrowers presently engage in an
integrated operation that requires financing on an integrated basis, and each
Borrower expects to benefit from the continued successful performance of such
integrated operations.  Therefore, in
order to best utilize the borrowing powers of the Borrowers in the most
effective and cost efficient manner and to avoid adverse effects on the
operating efficiencies of each Borrower and the existing back office practices
of the Borrowers, each Borrower has requested that all Revolving Loans, Delayed
Draw Loans and the Term Loan be disbursed, and Letters of Credit by issued,
solely upon the request of the Borrower Representative and to bank accounts
managed solely by the Borrower Representative, it being the intent and desire
of the Borrowers that the Borrower Representative manage for the benefit of
each Borrower the expenditure and usage of such funds.


 


(e)         Accounts.  In no event shall prior recourse to any
Account or other security granted to or by the Borrowers be a prerequisite to
the Administrative Agent’s or the Lenders’ rights to demand payment of any of
the Obligations.  In addition, the
Borrowers agree that neither the Administrative Agent nor any Lender shall have
any obligation whatsoever to perform in any respect any Borrower’s contracts or
obligations relating to the Accounts.


 


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Section 2.15                 Incremental Facility


 


(a)           At
any given date (i) during the one hundred and eighty (180) day period
after the Closing Date and (ii) subject to the satisfaction of the
conditions set forth in Sections  4.01  (l), (m), (n),
(p) (provided, however, that “December 31, 2006” be replaced
by the date of the latest financial statements delivered by the Borrowers to
the Administrative Agent pursuant to Section 6.01(a) hereof)
and Section 4.02, the Borrowers may on a one-time basis and by
written notice to the Administrative Agent request a new term loan, and an
increase of the Delayed Draw Commitment (or,
in the event the Delayed Draw Commitment has been terminated for any reason, a
new Delayed Draw Commitment) and the Revolving Commitment (the “New
Loan Commitments”), pro rata on the basis of the outstanding principal
amount of the Term Loan, the Revolving Commitment and the Delayed Draw
Commitment (but if the Delayed Draw Commitments are equal to zero, to the
aggregate outstanding principal amount of the Delayed Draw Loans), in an
aggregate total amount not to exceed $40,000,000, and the Administrative Agent
shall inform the Lenders of such request. At the time of sending such notice,
the Borrower Representative (in consultation with the Administrative Agent)
shall specify the time period within which each Lender is requested to respond
(which shall in no event be less than ten (10) Business Days from the date
of delivery of such notice to the Lenders).


 


(b)           Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to an increase in its: (i) Term Loan
Commitment, (ii) Revolving Commitment and (iii) Delayed Draw
Commitment or, in the event the Delayed Draw Commitment has been terminated for
any reason, a new Delayed Draw Commitment. Each Lender will participate in an
amount equal to the percentage of its pro-rata participation (the “Applicable
Credit Percentages”) in
the total amount equal to the sum of (i) the principal amount of the Term
Loan then outstanding, plus (ii) the amount of the Delayed Draw
Commitments (or the principal amount of the Delayed Draw Loan
then outstanding, if the Delayed Draw Commitments are equal to zero), plus (iii) the amount of the Revolving Commitments at
that time. Any Lender not responding within such time period shall be deemed to
have declined its New Loan Commitment.


 


(c)           In the event that the portion of the New Loan Commitment agreed to be
undertaken by the Lenders is not sufficient to achieve the full amount of the
total amount of the New Loan Commitments, the Borrowers may invite lenders who
qualify as Eligible Assignees to become a Term Loan Lender, a Delayed Draw Loan
Lender or a Revolving Loan Lender, to the extent necessary to achieve the total
amount of the New Loan Commitments pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel. Such new
lenders shall not be entitled to fees payable by the Borrowers in excess of, or
with priority over, the fees payable to the Lenders pursuant to the Fee Letter.


 


(d)           If,
after giving effect to Sections 2.15(b) and (c), the New
Loan Commitments are provided to the Borrowers (such date the “NLC Effective
Date”), then without further action on the part of any Party hereto:


 


60






 












 


(i)  the
definitions of “Delayed Draw Commitment”, “Revolving Commitment” and “Term Loan
Commitment”, and Schedule 2.01 hereto shall be amended to reflect the
New Loan Commitments;


 


(ii)  the
Availability Period for the New Loan Commitments which are Delayed Draw
Commitments shall be 270 days commencing with the NLC Effective Date; and


 


(iii)  the
definition of “Required Lenders” shall be amended to change “sixty-six and two
thirds percent (66 2/3%)” to “in excess of fifty percent (50%)”.


 


ARTICLE III



TAXES, YIELD PROTECTION AND ILLEGALITY


 


Section 3.01                 Taxes.


 


(a)         Subject
to Section 3.01(f), any and all payments by any Loan Party to or
for the account of the Administrative Agent or any Lender under any Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, assessments,
fees, withholdings or similar charges, and all liabilities with respect
thereto, excluding, in the case of the Administrative Agent and each
Lender, taxes imposed on or measured by its net income, and franchise taxes
imposed on it (in lieu of net income taxes), in each of the foregoing cases by
the jurisdiction (or any political subdivision thereof) under the Laws of which
the Administrative Agent or such Lender, as the case may be, is organized or
maintains its principal office or its Lending Office (all such non-excluded
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and liabilities being hereinafter referred to as “Taxes”).  Subject to Section 3.01(f), if
any Loan Party shall be required by any Laws to deduct any Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent
or any Lender, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section), each of the Administrative Agent
and such Lender 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, (iii) such Loan Party shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable Laws, and (iv) within thirty (30) days after the date of
such payment, such Loan Party shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof or if no receipt is available, other evidence
of payment reasonably satisfactory to the Administrative Agent.  If any amounts are payable in respect of
Taxes pursuant to this Section 3.01(a), the Borrowers shall be
obligated to reimburse each Lender for net incremental taxes imposed on or
measured by the net income or net profits of such Lender pursuant to the Laws
of the jurisdiction in which such Lender is organized or maintains its Lending 


 


61

















 


Office in respect of any such amount so paid to or on behalf of such
Lender under this Section 3.01(a), including pursuant to this
sentence.


 


(b)        In
addition, the Borrowers agree to pay any and all present or future stamp,
court, recordation, mortgage or documentary taxes or any excise taxes or other
charges or similar levies which arise from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect to, any
Loan Document (hereinafter referred to as “Other Taxes”).


 


(c)         Without
duplication of its obligation to pay increased amounts on account of Taxes or
Other Taxes pursuant to Section 3.01(a) and (b), and
subject to Section 3.01(f), the Borrowers agree to indemnify and
hold harmless the Administrative Agent and each Lender for (i) the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this Section) paid by the
Administrative Agent and such Lender, and (ii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with
respect thereto, in each case whether or not such Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  Payment under this subsection (c) shall
be made within thirty (30) days after the date the Lender or the
Administrative Agent makes a demand therefor; provided, however that the
failure of a Lender or the Administrative Agent to provide the notice to the
Borrowers shall not relieve the Borrowers of any of its obligations under this Section 3.01.


 


(d)        Each
Lender, if any, that is not organized under the laws of the United States or a
state thereof (each, a “Foreign Lender”) shall, (i) on or prior to
the date of the execution and delivery of this Agreement, in the case of each
Lender listed on the signature pages hereof, or, in the case of an
assignee Lender, on or prior to the date it becomes a Lender, execute and
deliver to the Borrowers and the Administrative Agent, two or more (as the
Borrowers or the Administrative Agent may reasonably request) United States
Internal Revenue Service Forms W-8IMY (with all required attachments), Forms
W-8ECI or Forms W-8BEN (or successor forms), as applicable, establishing the
Lender’s exemption from or reduction in United States federal withholding tax,
or such other forms or documents (or successor forms or documents),
appropriately completed, as may be necessary to establish that such Lender is
entitled to a full or partial exemption from withholding or deduction of United
States federal withholding taxes; and (ii) deliver to the Borrowers and
the Administrative Agent two further copies of any such form or documents on or
before the date that any such form or document expires or becomes obsolete in
any material respect and after the occurrence of any event that renders the
previous form or documents inaccurate in any material respect.


 


(e)         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 


 


62

















 


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
good faith 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 copies of IRS Form W-8IMY
(or any successor thereto), together with any information such Lender chooses
to transmit with such form, and any other certificate or statement of exemption
required under the Internal Revenue 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.


 


(f)         The
Borrowers shall not be required to pay or indemnify any additional amount to
any Foreign Lender under this Section 3.01 (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 3.01(f) or (B) if such Lender
shall have failed to provide the proper forms as required by the foregoing
provisions of Section 3.01(d) or (e); provided
that if such Lender shall have satisfied the requirement of Section 3.01(d) or
(e) (as the case may be) 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 3.01 shall relieve the
Borrowers of their obligation to pay any amounts pursuant to this Section 3.01
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 legally
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 or such forms,
certificates or other evidence is no longer applicable to such Lender or other
Person.


 


(g)        The
Administrative Agent may withhold any Taxes required to be deducted and
withheld from any payment under any of the Loan Documents with respect to which
the Borrowers are not required to pay additional amounts under Section 3.01(g) or
(h).


 


(h)        Each
Lender that is a “United States person” within the meaning of Section 7701(a)(30)
of the Internal Revenue Code shall deliver to the Administrative Agent two duly
signed completed copies 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 Internal
Revenue Code.


 


(i)          If
any Governmental Authority asserts that the Administrative Agent or any
Agent-Related Person 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 or any Agent-


 


63





















 


Related Person therefor, including all penalties and interest, any
taxes imposed by any jurisdiction on the amounts payable to the Administrative
Agent or any Agent-Related Person under this Section, and costs and expenses
(including Attorney Costs) of the Administrative Agent or any Agent-Related
Person.  The obligation of the Lenders
under this Section shall survive the termination of all commitments to
make Loans, repayment of all Obligations and the resignation of the
Administrative Agent.


 


(j)          If
the Administrative Agent, a Lender or the L/C Issuer determines, in its sole
good faith discretion, that (i) it has received a refund of any Taxes or
Other Taxes as to which it has been indemnified by the Borrowers or with
respect to which any Borrower has paid additional amounts pursuant to this Section 3.01
(a “Tax Refund”), or (ii) it has actually realized a credit for any
Taxes or Other Taxes as to which it has been indemnified by the Borrowers or
with respect to which the Borrowers have paid additional amounts pursuant to
this Section 3.01 (a “Tax Credit”), it shall pay to the
Borrowers an amount equal to such Tax Refund or Tax Credit (but only to the
extent of indemnity payments made, or additional amounts paid, by the Borrowers
under this Section 3.01 with respect to the Taxes or Other Taxes
giving rise to such Tax Refund or Tax Credit), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund that is actually received by
the Administrative Agent, such Lender or the L/C Issuer, as the case may be),
provided that such Borrower, upon the request of the Administrative Agent, such
Lender or the L/C Issuer, agrees to repay the amount paid over to such Borrower
(plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent, such Lender or the L/C
Issuer (as the case may be) in the event the Administrative Agent, such Lender
or the L/C Issuer is required to repay such Tax Refund or Tax Credit to such
Governmental Authority.  This paragraph
shall not be construed to require the Administrative Agent, any Lender or the
L/C Issuer to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.


 


Section 3.02                 Illegality.


 


If
any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrowers through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowers
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurodollar Rate Loans.  Upon any
such prepayment or conversion, the Borrowers shall also pay accrued 


 


64

















 


interest on the amount so prepaid or
converted.  Each Lender shall use
reasonable efforts consistent with law to designate a different Lending Office
if such designation will avoid the need for such notice and will not, in the good
faith judgment of such Lender, otherwise be disadvantageous to such Lender or
cost any additional amount.


 


Section 3.03                 Inability
to Determine Rates.


 


If
the Administrative Agent determines that for any reason adequate and reasonable
means do not exist for determining the Eurodollar Base Rate for any requested
Interest Period with respect to a proposed Eurodollar Rate Loan, or that the
Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to the Lenders of funding such Loan, the Administrative Agent will promptly
notify the Borrowers and all Lenders. 
Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans shall be suspended until the Administrative Agent revokes such
notice.  Upon receipt of such notice, the
Borrowers may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.


 


Section 3.04                 Increased
Cost and Reduced Return; Capital Adequacy.


 


If any Change in Law shall:


 


(a)         impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except
any reserve requirement reflected in the Eurodollar Rate) or the L/C Issuer;


 


(b)        subject
any Lender or the L/C Issuer to any tax of any kind whatsoever with respect to
this Agreement, any Letter of Credit, any participation in a Letter of Credit
or any Loan made by it, or change the basis of taxation of payments to such
Lender or the L/C Issuer in respect thereof (except for Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the
rate of, any Excluded Tax payable by such Lender or the L/C Issuer); or


 


(c)         impose
on any Lender or the L/C Issuer or the London interbank market any other
condition, cost or expense affecting this Agreement or 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 Loan
(or of maintaining its obligation to make any such Loan), or to increase the
cost to such Lender or the L/C Issuer of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to
participate in or to issue any Letter of Credit), or to reduce the amount of
any sum received or receivable by such Lender or the L/C Issuer hereunder
(whether of principal, interest or any other amount) then, upon request of such
Lender or the L/C Issuer, the Borrowers will pay to such Lender or the L/C
Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C 


 


65

















 


Issuer, as the case may be, for such
additional costs incurred or reduction suffered.  Failure or delay on the part of any Lender to
demand compensation pursuant to this Section 3.04 shall not
constitute a waiver of such Lender’s right to demand such compensation; provided
that the Borrowers shall not be required to compensate a Lender pursuant to
this Section 3.04 for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender notifies the Borrowers of
the Change in Law giving rise to such increased costs or reductions and of such
Lender’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 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.


 


Section 3.05                 Funding
Losses.  Upon demand
of any Lender (with a copy to the Administrative Agent) from time to time, the
Borrowers shall promptly compensate such Lender for and hold such Lender
harmless from any loss, cost or expense incurred by it as a result of:


 


(a)         any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);


 


(b)        any
failure by the Borrowers (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrowers; or


 


(c)         any
assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrowers pursuant to Section 12.15;


 


including any loss of
anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable
to terminate the deposits from which such funds were obtained.  The Borrowers shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


For
purposes of calculating amounts payable by the Borrowers to the Lenders under
this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in determining
the Eurodollar Rate for such Loan by a matching deposit or other borrowing in
the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.


 


Section 3.06                 Matters
Applicable to all Requests for Compensation; Mitigation.


 


(a)         A
certificate of the Administrative Agent or any Lender claiming compensation
under this Article III and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error.  In determining such
amount, the Administrative Agent or such Lender may use any reasonable
averaging and attribution methods.


 


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(b)        Upon
any Lender’s making a claim, for compensation under Section 3.01 or
3.04, whether on behalf of itself or any Participant, or that such
Lender is unable to maintain or fund Eurodollar Rate Loans under Section 3.02,
the Borrowers may replace such Lender in accordance with Section 12.15.


 


(c)         Each
Lender agrees that, upon the occurrence of any event giving rise to the
operation of Sections 3.01(a)-(c) and Section 3.04 with
respect to such Lender, it will use reasonable efforts (subject to overall
policy considerations of such Lender) to designate another lending office for
any Loans affected by such event with the object of avoiding the consequences
of such event; provided, that such designation is made on terms that, in
the sole judgment of such Lender, cause such Lender and its lending office(s) to
suffer no economic, legal or regulatory disadvantage, and provided, further,
that nothing in this Section shall affect or postpone any of the
Obligations of the Borrowers or the rights of any Lender pursuant to Sections
3.01(a)-(c) or Section 3.04.


 


Section 3.07                 Survival.  All of the Borrowers’ obligations under this Article III
shall survive the Termination Date.


 


ARTICLE IV



CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


Section 4.01                 Conditions
of Initial Credit Extension.


 


The obligation of each Lender
and the L/C Issuer to make its initial Credit Extension hereunder is subject to
satisfaction of the following conditions precedent:


 


(a)         Loan
Documents.  Receipt by the
Administrative Agent of executed counterparts of this Agreement and the Security
Agreement (which shall be in form and substance satisfactory to the
Administrative Agent and each Lender), the other Collateral Documents and the
other agreements, instruments and other documents set forth on the Closing
Checklist, each properly executed by an authorized officer of each Loan Party
party thereto and, in the case of this Agreement, by each Lender, and in form
and substance satisfactory to the Administrative Agent.


 


(b)        Organization
Documents, Resolutions, Etc.  Receipt
by the Administrative Agent of the following, each of which shall be originals
or facsimiles (followed promptly by originals), dated as of a recent date
before the Closing Date and in form and substance reasonably satisfactory to
the Administrative Agent:


 


(i)            copies
of the Organization Documents of each Loan Party certified to be true and
complete as of a recent date acceptable to the Administrative Agent by the
appropriate Governmental Authority of the state or other jurisdiction of its
incorporation or organization, where applicable, and certified by a secretary
or assistant secretary of such Loan Party to be true and correct as of the
Closing Date;


 


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(ii)           such
certificates of resolutions or other action, incumbency certificates and/or
other certificates certified by a secretary or assistant secretary of each Loan
Party as the Administrative Agent may reasonably require evidencing the
identity, authority and capacity of (A) each officer of any Loan Party
executing any agreement, certificate of other document required to be delivered
hereby or (B) authorized to act as a Responsible Officer in connection
with this Agreement and the other Loan Documents to which such Loan Party is a
party; and


 


(iii)          such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business in its state of
organization or formation and the state in which its principal place of
business is located.


 


(c)         Filings,
Registrations and Recordings. 
Receipt by the Administrative Agent of each document (including any
UCC-1 financing statements) required by the Collateral Documents or under Law
or reasonably requested by the Administrative Agent to be filed, registered or
recorded in order to create in favor of the Administrative Agent, for its
benefit and the benefit of the Secured Parties, a perfected Lien on the
Collateral described therein, prior and superior in right to any other Person
(other than Permitted Liens), shall be in proper form for filing, registration
or recordation.


 


(d)        Pledged
Stock and Equity Interest; Stock Powers; Pledged Notes.  Receipt by the Administrative Agent of (i) any
certificates representing the Equity Interest pledged pursuant to the Security
Agreement, together with an undated stock (or analogous) power for each such
certificate executed in blank by a duly authorized officer of the pledgor
thereof or, with respect to any uncertificated security, an Uncertificated
Security Control Agreement executed by a pledgor and acknowledged by the
applicable Loan Parties, and (ii) each promissory note (if any) pledged to
the Administrative Agent pursuant to the Security Agreement endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by
the pledgor thereof.


 


(e)         Blocked
Accounts; Payment Direction.  (i) The
Loan Parties shall have established one or more Blocked Accounts with respect
to the collection of Accounts and the deposit of the proceeds thereof and (ii) the
Administrative Agent, the applicable Borrower and the applicable depository
bank shall have entered into a Deposit Account Control Agreement with respect
to each deposit account of the Borrowers other than Excluded Accounts.


 


(f)         Opinions
of Counsel.  Receipt by the
Administrative Agent of favorable opinions of (i) Cooley Godward Kronish
LLP, counsel to the Loan Parties and (ii) Kelley
Drye & Warren LLP, regulatory counsel to the Loan Parties, in each
case, addressed to the Administrative Agent and each Lender, dated as of the
Closing Date, and in form and substance satisfactory to the Administrative
Agent.


 


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(g)        Evidence
of Insurance.  Receipt by the
Administrative Agent of copies of insurance policies or certificates of
insurance of the Borrowers and their Domestic Subsidiaries evidencing liability
and casualty insurance meeting the requirements set forth in the Loan Documents
and in each case in form and substance satisfactory to the Administrative
Agent.


 


(h)        Lien
Searches.  Receipt by the
Administrative Agent of UCC, tax and other Lien searches considered necessary
by the Administrative Agent and other evidence as requested by the Administrative
Agent that no Liens exist other than Permitted Liens and otherwise in form and
substance satisfactory to the Administrative Agent.


 


(i)          Third
Party Consents.  Receipt by the
Administrative Agent of evidence reasonably satisfactory to the Administrative
Agent that the Loan Parties have obtained all required consents and approvals
of all Persons including all requisite Governmental Authorities, to the
execution, delivery and performance of the Loan Documents.


 


(j)          Fees.  Receipt by the Administrative Agent and the
Lenders of any fees required to be paid on or before the Closing Date under
this Agreement and the Fee Letter.


 


(k)         Attorney
Costs.  The Loan Parties shall have
paid all Attorney Costs of the Administrative Agent, plus such
additional amounts of Attorney Costs as shall constitute its reasonable
estimate of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the Loan Parties and the Administrative Agent).


 


(l)          Compliance
with Laws.  Each Loan Party shall be
in compliance in all material respects with all applicable Law (except to the
extent any of the exceptions set forth in Schedule 6.08 constitutes a
failure by the Loan Parties to comply with this Section 4.01(l)).


 


(m)        Compliance
with Agreements. Each Loan Party shall be in compliance in all material
respects with all material agreements, and shall have provided the
Administrative Agent with true and correct copies of each Material Contract.


 


(n)        No
Litigation.  There exists no pending
or threatened Proceeding against the Loan Parties or any of their Domestic
Subsidiaries or, in each case, their respective assets in any court or
administrative forum (including but not limited to litigation relating to
Debtor Relief Laws, or litigation affecting the transactions contemplated by
the Loan Documents) except that which has been disclosed to the Lenders in
writing.


 


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(o)        Financial Statements; Projections.  Receipt by the Administrative Agent of:


 


(i)            the
Audited Pre Closing Financial Statements;


 


(ii)           the
Interim Pre Closing Financial Statements; and


 


(iii)          such
other information as the Administrative Agent may reasonably request.


 


(p)        No
Material Adverse Change.  There shall
not have occurred a change which would have a Material Adverse Effect with
respect to the operations, financial condition or other condition of the Loan
Parties as of December 31, 2006.


 


(q)        Closing
Certificate.  Receipt by the
Administrative Agent of a certificate executed by a Responsible Officer of the
Borrower Representative certifying that the conditions specified in Sections 4.01(l),
4.01(m) and  4.01(n), and Section 4.02(a) and
4.02(b) have been satisfied and that the representations and
warranties contained in Article V are true and correct as of the
Closing Date.


 


(r)         Investment
Documents.  Confirmation of ownership
and capital structure of the Loan Parties and receipt by the Administrative
Agent of the constituent documents of the Loan Parties and related investment
agreements, if any.  There shall be no
preferred equity securities of the Loan Parties.


 


(s)         Required
PUC Consents.  Receipt by the
Administrative Agent of evidence that all Required PUC Consents have been
either received by the Administrative Agent or, where only filing is required,
prepared by the applicable Loan Parties and filed with the applicable PUC.


 


(t)         Due
Diligence.  The Administrative Agent
shall have completed its legal due diligence with respect to the Loan Parties,
with results satisfactory to the Administrative Agent in its sole discretion.


 


Section 4.02                 Conditions
to all Credit Extensions.


 


The obligation of each Lender
and the L/C Issuer to make any Loans or otherwise issue or incur a Credit
Extension (including any Credit Extension on the Closing Date), is subject to
the following conditions precedent:


 


(a)         The
representations and warranties of each Loan Party contained in Article V
or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true, complete
and correct in all material respects (unless qualified as to materiality, in
which case such representations and warranties are true, complete and correct)
on and as of the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true, complete


 


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and correct as of such earlier date, and except that for purposes of
this Section 4.02, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01.


 


(b)           No
Default or Event of Default shall exist, or would result from such proposed
Credit Extension.


 


(c)           There
shall not have been commenced against any Loan Party an involuntary case under
any applicable Debtor Relief Law, now or hereafter in effect, or any case,
proceeding or other action for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of such Person
or for any substantial part of its Property or for the winding up or
liquidation of its affairs, and such involuntary case or other case, proceeding
or other action shall remain undismissed.


 


(d)           After
giving effect to such Credit Extension, (i) the total Revolving Exposures
shall not exceed the total Revolving Commitments, (ii) the total amounts
outstanding under the Delayed Draw Loans shall not exceed the total Delayed
Draw Commitments, and (iii) the Loan Parties shall be in compliance with
the covenant set forth in Section 8.01(a).


 


(e)           The
Administrative Agent and, if applicable, the applicable L/C Issuer shall have
received a Request for Credit Extension in accordance with the requirements
hereof.


 


(f)            No
Material Adverse Effect shall exist, as determined by the Administrative Agent,
since December 31, 2006.


 


(g)           The
following shall be a Conditions Precedent of any Credit Extension (other than a
Credit Extension based on any Loan Notice submitted by the Borrower
Representative on or prior to the Closing Date), until such time as the Borrowers satisfy
the covenant set forth in Section 6.01(a)(i): The Administrative
Agent shall have received a Compliance Certificate from the Borrower
Representative based on the unaudited financial statements referred to in
Section 6.01(a) for the Fiscal Year ended December 31,
2007.


 


Each Request for Credit Extension
submitted by the Borrower Representative shall be deemed to be a representation
and warranty by the Loan Parties that the conditions specified in Section 4.02
have been satisfied on and as of the date of the applicable Credit Extension.


 


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ARTICLE V


 


REPRESENTATIONS AND WARRANTIES


 


The
Loan Parties each hereby represent and warrant to the Administrative Agent and
the Lenders that:


 


Section 5.01                 Existence, Qualification and
Power.  Each Loan
Party (a) is a corporation, partnership or limited liability company duly
organized or formed, validly existing and in good standing under the Laws of
the jurisdiction of its incorporation or organization, (b) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (i) own such Loan Party’s assets
and carry on such Loan Party’s business and (ii) execute, deliver and
perform such Loan Party’s obligations under the Loan Documents to which such
Loan Party is a party, and (c) is duly qualified and is licensed and in
good standing under the Laws of each jurisdiction where such Loan Party’s
ownership, lease or operation of properties or the conduct of its business
requires such qualification or license except where the failure to be so
qualified or licensed could not reasonably be expected to have a Material
Adverse Effect.


 


Section 5.02                 Authorization; No
Contravention.  The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Loan Party is party, have been duly authorized by all necessary
corporate or other organizational action of such Loan Party, and do not (a) contravene
the terms of any Loan Party’s Organization Documents; (b) conflict with or
result in any breach or contravention of (i) any material Contractual
Obligation to which any Loan Party is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which any Loan Party or the Property of any Loan Party is subject; (c) result
in or require the creation of any Lien upon any Property of any Loan Party
(other than Liens created under the Loan Documents in favor of the
Administrative Agent for the benefit of the Secured Parties); (d) violate
any Law (including Regulation U or Regulation X issued by the FRB);
or (e) result in a material limitation on any licenses, permits or other
Governmental Approvals applicable to the business, operations or properties of
any Loan Party.


 


Section 5.03                 Governmental Authorization;
Other Consents.  No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement, any other Loan Document,
other than (i) those that have already been obtained and are in full force
and effect and (ii) filings to perfect the Liens created by the Collateral
Documents.


 


Section 5.04                 Binding Effect.  Each Loan Document has been duly executed and
delivered by each Loan Party that is party thereto.  Each Loan Document constitutes a legal, valid
and binding obligation of each Loan Party that is party thereto, enforceable
against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable Debtor Relief Laws or by equitable
principles relating to enforceability.


 


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Section 5.05                 Financial Statements; No
Material Adverse Effect.


 


(a)           The
Audited Pre Closing Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material
respects the financial condition of the applicable Loan Parties on a
consolidated basis as of the date thereof and their results of operations for
the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; and (iii) show, in accordance with GAAP, all material
Indebtedness and other material liabilities, direct or contingent, of the
applicable Loan Parties as of the date thereof, including liabilities for
taxes, commitments and Indebtedness.


 


(b)           The
Interim Pre Closing Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material
respects the financial condition of the Loan Parties and their Domestic
Subsidiaries, on a consolidated basis, as of the date thereof and their results
of operations for the period covered thereby, subject, in the case of
clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments; and (iii) show, in accordance with GAAP, all
material Indebtedness and other material liabilities, direct or contingent, of
the Loan Parties and their Domestic Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.


 


(c)           From
the date of the Audited Pre Closing Financial Statements and the Interim Pre
Closing Financial Statements to and including the Closing Date, there has been
no Disposition by the respective Persons covered by such financial statements
with respect to a material portion of the Borrowers’ assets, or any Involuntary
Disposition, of any material part of the business or Property of the respective
Persons covered by such financial statements, and no purchase or other
acquisition by any of them of any business or property (including any Equity
Interest of any other Person) material in relation to the consolidated
financial condition of the respective Persons covered by such financial
statements, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in
writing to the Lenders on or prior to the Closing Date.


 


(d)           The
financial statements delivered pursuant to Sections 6.01(a) and
6.01(b) will be prepared in accordance with GAAP (except as may
otherwise be permitted under Sections 6.01(a) and 6.01(b))
and present fairly in all material respects the consolidated financial
condition, results of operations and cash flows of the Loan Parties and their
Domestic Subsidiaries as of the dates thereof and for the periods covered
thereby.


 


(e)           Since
December 31, 2006 there has been no event or circumstance that has had or
could reasonably be expected to have a Material Adverse Effect.


 


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Section 5.06                 Litigation.  There are no Proceedings pending or, to the
Knowledge of the Loan Parties, threatened or contemplated, at law, in equity,
in arbitration or before any Governmental Authority, by or against any Loan
Party or any of its Subsidiaries or against any of their properties or revenues
that (a) purport to affect or pertain to this Agreement or any other Loan
Document, or (b) if determined adversely, could reasonably be expected to
have a Material Adverse Effect or result in any Loan Party not being authorized
to own or operate any material portion of the Collateral or its Property.


 


Section 5.07                 No Default.


 


(a)           No
Loan Party is in breach of or default under (i) any Material Contract, or (ii) any
other Contractual Obligation; in each case, that could reasonably be expected
to have a Material Adverse Effect.


 


(b)           No
Default or Event of Default has occurred and is continuing.


 


Section 5.08                 Ownership of Property; Liens.  Each of the Loan Parties and its Domestic
Subsidiaries has, as applicable, good record and marketable title in fee simple
to, valid leasehold interests in, valid licenses or other valid rights to use,
all Property necessary or material to the ordinary conduct of such Loan Party’s
or its Domestic Subsidiary’s business. 
No Property of the Loan Parties and their Domestic Subsidiaries is
subject to any Liens, other than Permitted Liens.


 


Section 5.09                 Environmental Compliance.  Except as could not reasonably be expected to
have a Material Adverse Effect:


 


(a)           Each
of the Facilities and all operations at the Facilities are in compliance with
all applicable Environmental Laws, and there is no violation of any Environmental
Law with respect to the Facilities or the Businesses, and there are no
conditions relating to the Facilities or the Businesses that could give rise to
liability under any applicable Environmental Laws.


 


(b)           None
of the Facilities contains, or to the Knowledge of the Loan Parties has
previously contained, any Hazardous Materials at, on or under the Facilities in
amounts or concentrations that constitute or constituted a violation of, or
could give rise to liability under, Environmental Laws.


 


(c)           Neither
any Loan Party nor any Subsidiary has received any written or verbal notice of,
or inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Facilities or the Businesses, nor does any Loan Party have Knowledge
that any such notice will be received or is being threatened.


 


(d)           Hazardous
Materials have not been transported or disposed of from the Facilities, or
generated, treated, stored or disposed of at, on or under any of the Facilities
or any other location, in each case by or on behalf of any Loan Party or any 


 


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Subsidiary in violation of, or in a manner that would be reasonably
likely to give rise to liability under, any applicable Environmental Law.


 


(e)           No
judicial proceeding or governmental or administrative action is pending or, to
the Knowledge of the Loan Parties, threatened, under any Environmental Law to
which any Loan Party or any Subsidiary is or will be named as a party, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to any Loan Party, any
Subsidiary, the Facilities or the Businesses.


 


(f)            There
has been no release or, to the Knowledge of the Loan Parties, threat of release
of Hazardous Materials at or from the Facilities, or arising from or related to
the operations (including disposal) of any Loan Party or any Subsidiary in
connection with the Facilities or otherwise in connection with the Businesses,
in violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws.


 


Section 5.10                 Insurance.  The Property of the Loan Parties and their
Subsidiaries are insured with financially sound and reputable insurance
companies (none of which are Affiliates of the Loan Parties), in such amounts,
with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in
localities where the applicable Loan Party or the applicable Subsidiary
operates.  The insurance coverage of the
Loan Parties as in effect on the Closing Date complies in all material respects
with the requirements of Section 6.07 and is outlined as to
carrier, policy number, expiration date, type, amount and deductibles on Schedule 5.10.


 


Section 5.11                 Taxes.  Except as set forth on Schedule 5.11,
the Loan Parties have filed all federal, state and other material tax returns
and reports required to be filed, and have paid all federal, state and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith
by appropriate proceedings diligently conducted and/or for which adequate
reserves have been provided in accordance with GAAP.  With respect to tax returns that have not yet
been filed for the taxable year ended December 31, 2006, the Loan Parties
have paid amounts to the relevant taxing authorities that they have determined
in good faith to be reasonable estimates of the taxes due to such taxing
authorities for such taxable year.  There
is no proposed tax assessment against any Loan Party that would, if made, have
a Material Adverse Effect.


 


Section 5.12                 ERISA Compliance.


 


(a)           Each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Internal Revenue Code, the Consolidated Omnibus Budget
Reconciliation Act of 1985 (“COBRA”) and the regulations and published
interpretations thereunder, and other federal or state Laws.  Each Plan that is intended to qualify under Section 401(a) of
the Internal Revenue Code either (a) is entitled to rely 


 


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on a favorable opinion letter issued by the IRS as to the qualified
status of a master or prototype plan under Section 401(a) of the
Internal Revenue Code, to the extent provided in Revenue Procedure 2005-16; or (b) has
received a favorable determination letter from the IRS or is the subject of an
application for a favorable determination letter from the IRS that is currently
being processed by the IRS.  Such opinion
letter, determination letter or application takes into account the changes in
qualification requirements under Section 401(a) of the Internal
Revenue Code made by the Pension Protection Act of 2006, Uruguay Round
Agreements Act, the Small Business Job Protection Act of 1996, the Uniformed
Services Employment and Reemployment Rights Act of 1994, the Taxpayer Relief
Act of 1997, the Internal Revenue Service Restructuring and Reform Act of 1998,
and the Community Renewal Tax Relief Act of 2000 (and each such Plan has been
timely amended to reflect changes in the qualification requirements under Section 401(a) of
the Internal Revenue Code made by the Economic Growth and Tax Relief
Reconciliation Act of 2001 and any applicable IRS guidance issued thereunder)
and, to the best knowledge of the Loan Parties, nothing has occurred which
would prevent, or cause the loss of, such reliance or qualification.  Each Loan Party and each ERISA Affiliate has
made all required contributions to each Plan subject to Section 412, 430,
431 or 432 of the Internal Revenue Code, and no application for a funding
waiver or an extension of any amortization period pursuant to the Internal
Revenue Code has been made with respect to any Plan.  Each Loan Party and each ERISA Affiliate has
performed all of its material obligations under each Plan in all material
respects according to their terms, including filing or furnishing to the IRS,
Department of Labor or other Governmental Authority, or to participants or
beneficiaries of each Plan, any reports, returns, notices and other
documentation required to be filed or furnished.


 


(b)           There
are no pending or, to the Knowledge of the Loan Parties, threatened material claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan.


 


(c)           (i) Other than as set forth in Schedule 5.12(c) hereof,
no ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party or
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) no Loan
Party or any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Sections 4201 or 4243 of ERISA
with respect to a Multiemployer Plan; and (v) no Loan Party or any ERISA
Affiliate has engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA, in each case, that could reasonably be expected to
have a Material Adverse Effect.


 


Section 5.13                 Capitalization; Subsidiaries.  Set forth on Schedule 5.13 is a
complete and accurate list as of the Closing Date of each Loan Party (other
than Holdings) and 


 


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each Subsidiary, together with (a) number
of shares or interests  of each class of
Equity Interest outstanding and (b) number and percentage of outstanding
shares of each class owned (directly or indirectly) by any Loan Party or any
Subsidiary or other Person.  Except as
set forth on Schedule 5.13, none of the shares or interests of
Equity Interest of any Loan Party (other than Holdings) or any of its Domestic
Subsidiaries is subject to any outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto.  The outstanding Equity Interest of each Loan
Party (other than Holdings) and each Domestic Subsidiary is validly issued,
fully paid and non-assessable.


 


Section 5.14                 Margin Regulations;
Investment Company Act.


 


(a)           The
Loan Parties are not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.  No proceeds of any Borrowing shall be used
for the purpose of purchasing or carrying margin stock.


 


(b)           None
of the Loan Parties or any of their Subsidiaries is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.


 


Section 5.15                 Disclosure.  No report, financial statement, certificate
or other information furnished (in writing) by or on behalf of any Loan Party
to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby or delivered hereunder (as modified or supplemented by, and
considered together with, all other information so furnished) contains any
material misstatement of fact or is misleading in any material respect whether
by any omission or otherwise; provided that, with respect to any projected
financial information, the Loan Parties represent that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.


 


Section 5.16                 Compliance with Laws.  Except as set forth on Schedule 5.16
or as could not reasonably be expected to have a Material Adverse Effect, each
of the Loan Parties and each Subsidiary has operated at all times in compliance
with the requirements of all Laws and all orders, writs, conditions of
participation, contracts, standards, policies, injunctions, decrees, and
Governmental Approvals applicable to it, its Properties or the Facilities,
except in such instances in which such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted. 
Without limiting the generality of the foregoing, neither any Loan Party
nor any Subsidiary is in receipt of any written notice of any violation of any
Law, statute, rule, regulation, ordinance, code, judgment, order writ, decree,
permit, concession, franchise or other governmental approval applicable to it
or any of its Property, which notice, individually or in the aggregate could
reasonably be expected or will have a Material Adverse Effect.


 


Section 5.17                 Intellectual Property;
Licenses, Etc.  The Loan
Parties and their Domestic Subsidiaries own, or possess the legal right to use,
all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property 


 


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rights (collectively, “IP Rights”)
that are necessary for the operation of their respective businesses without
conflict with the rights of any other Person. 
Set forth on Schedule 5.17 is a list of all IP Rights
registered or pending registration with the United States Copyright Office or
the United States Patent and Trademark Office and owned by any Loan Party, or
that any Loan Party has the exclusive right to use, as of the Closing
Date.  No claim has been asserted and is
pending by any Person challenging or questioning the use of any IP Rights or
the validity or effectiveness of any IP Rights, nor does any Loan Party have
Knowledge of any such claim, and, to the Knowledge of the Loan Parties, the use
of any IP Rights by any Loan Party or any Domestic Subsidiary or the granting
of a right or a license in respect of any IP Rights from any Loan Party or any
Domestic Subsidiary does not infringe on the rights of any Person.  As of the Closing Date, none of the IP Rights
owned by any of the Loan Parties is subject to any licensing agreement or
similar arrangement except as set forth on Schedule 5.17.


 


Section 5.18                 Broker’s Fees.  Except as set forth on Schedule 5.18,
neither any Loan Party nor any Subsidiary has any obligation to any Person in
respect of any finder’s, broker’s, investment banking or other similar fee in
connection with any of the transactions contemplated under the Loan Documents.


 


Section 5.19                 Labor Matters.  There are no collective bargaining agreements
or Multiemployer Plans covering the employees of any Loan Party or any  Subsidiary as of the Closing Date, and
neither any Loan Party nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five (5) years.


 


Section 5.20                 Business Locations.  Set forth on Schedule 5.20(a) is
a list of all Real Property located in the United States that is owned or
leased by any Loan Party as of the Closing Date.  Set forth on Schedule 5.20(b) is
a list of all locations where any tangible personal property of any Loan Party
having a value greater than $500,000 is located as of the Closing Date (which
list may include other locations where the Borrowers carry out their
Telecommunications Business), which  list
shall be updated as set forth in Section 6.02(g) hereof.  Set forth on Schedule 5.20(c) is
the chief executive office, tax payer identification number and organizational
identification number of each Loan Party as of the Closing Date.  The exact legal name and state of
organization of each Loan Party is as set forth on the signature pages hereto.  Except as set forth on Schedule 5.20(d),
no Loan Party has during the four (4) years preceding the Closing Date (i) changed
its legal name, (ii) changed its state of formation, or (iii) been
party to a merger, consolidation or other change in structure.


 


Section 5.21                 Perfection of Security
Interests in the Collateral.  The Collateral Documents create valid
security interests in, and Liens on, the Collateral purported to be covered
thereby, which security interests and Liens, to the extent perfection can be
effected pursuant to Article 8 or 9 of the UCC, shall be perfected
security interests and Liens, prior to all other Liens, other than Permitted
Liens, the filing of UCC financing statements and the taking of such other
actions contemplated by the Loan Documents.


 


Section 5.22                 Solvency.  Both before and after giving effect to (a) the
Loans to be made or extended on the Closing Date or such other date as Loans
requested hereunder are made or extended, the issuance of the guaranties of the
Obligations and the pledge of assets as security 


 


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therefor by all of the Loan Parties, (b) the
disbursement of the proceeds of such Loans pursuant to the instructions of the
Loan Parties, (c) the consummation of the transactions contemplated in the
Loan Documents and (d) the payment and accrual of all transaction costs in
connection with the foregoing, the Loan Parties individually and taken as a
whole are Solvent.


 


Section 5.23                 Reserved.


 


Section 5.24                 No Restricted Payments.  Other than as set forth on Schedule 5.24
hereto, since December 31, 2006, no Loan Party has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Payment or agreed to do so except as would be permitted pursuant to Section 7.06.


 


Section 5.25                 Material Contracts.  Schedule 5.25 contains a true,
correct and complete list of all Material Contracts in effect as of the Closing
Date, and except as described thereon, all such Material Contracts are in full
force and effect and no material breaches, or defaults or events of default on
the part of the Loan Parties, or to the Knowledge of the Loan Parties, on the
part of the other parties thereto, currently exist thereunder.


 


Section 5.26                 Reserved.


 


Section 5.27                 Patriot Act.  To the extent applicable, each Loan Party is
in compliance with the (i) Trading with the Enemy Act, and each of the
foreign assets control regulations of the Untied States Treasury Department (31
CFR, Subtitle B, Chapter V) and any other enabling legislation or
executive order relating thereto, and (ii) Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001) (the “Patriot Act”).  No part of the proceeds of the Loans will be
used, directly or indirectly, for any payments to any governmental official or
employee, political party, official of a political party, candidate for
political office, or anyone else acting in an official capacity, in order to
obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977.


 


Section 5.28                 Licensing.


 


(a)           Except
as set forth in Schedule 5.28 or as would not reasonably be
expected to have a Material Adverse Effect, each of the Loan Parties and their
Domestic Subsidiaries has, to the extent applicable:  (i) obtained (or been duly assigned) all
required Governmental Approvals for the acquisition, construction, expansion
of, investment in or operation of its businesses and Facilities as currently
operated; and (ii) obtained and maintains in good standing all required
Governmental Approvals, including all FCC Licenses.  No event has occurred or other fact exists
with respect to the Governmental Approvals that allows, or after notice or
lapse of time or both, would allow, revocation, suspension, restriction,
limitation or termination of any of the Governmental Approvals, in each case,
so as to be reasonably expected to have a Material Adverse Effect.  No notice from any Governmental Authority in
respect to the revocation, suspension, restriction, limitation or termination
of any Governmental Approval has been delivered, issued, proposed or, to the
Knowledge of any Loan Party, 


 


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threatened, in each case, so as to be reasonably expected to have a
Material Adverse Effect.  Each Loan Party
has duly filed all material reports, statements and filings that are required
to be filed by any of them with respect to material licenses under the
Communications Act, and are in all material respects in compliance therewith,
including the material rules and regulations of the FCC. Each Loan Party
is in all material respects in compliance with all State PUC Licenses and the
applicable State Telecommunications Laws, except any such failure to comply
which has not, and could not reasonably be expected to have, a Material Adverse
Effect or result in such Loan Party not being authorized to own or operate any
material portion of its Telecommunications Assets, or incur or remain liable
with respect to any of the Obligations or Liens granted as security
therefor.  Except as set forth on Schedule 5.28,
no Loan Party has any Knowledge of any event or circumstance constituting (i) noncompliance
(or any Person alleging noncompliance) with any rule or regulation of the
FCC and (ii) noncompliance (or any Person alleging noncompliance) with any
applicable State Telecommunications Laws, except, in each case, any
noncompliance which has not, and could not reasonably be expected to have, a
Material Adverse Effect or result in any Loan Party not being authorized to own
or operate any material portion of the Telecommunication Assets, or incur or
remain liable with respect to any of the Obligations or Liens granted as
security therefor.


 


(b)           There
is no civil, criminal or administrative action, suit, claim, indictment,
proceeding, hearing, charge, complaint, demand, audit inspection or
investigation pending or, to the Knowledge of the Loan Parties, threatened by any
federal, state or local governmental agency against any Loan Party or any
Subsidiary or any Responsible Officer thereof, that could reasonably be
expected to have a Material Adverse Effect, nor, to the Knowledge of the Loan
Parties, is there any basis therefor.


 


Section 5.29                 Deposit Accounts.  Schedule 5.29 lists all banks and
other financial institutions at which any Loan Party or any of its Domestic
Subsidiaries maintains deposit or other accounts as of the Closing Date and
such Schedule correctly identifies the name of each depository, the name in
which the account is held, a description of the purpose of the account and the
complete account number therefor.


 


ARTICLE VI


 


AFFIRMATIVE COVENANTS


 


So
long as any Lender shall have any Revolving Commitment or Delayed Draw
Commitment hereunder or any Loan or other Obligation hereunder shall remain
unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Loan Parties shall and shall cause each Domestic Subsidiary (or each
Subsidiary, if specified below) to:


 


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Section 6.01                 Financial Statements.  Deliver to the Administrative Agent, in form
and detail reasonably satisfactory to the Administrative Agent:


 


(a)         as
soon as available, but in any event (i) no later than September 30,
2008 with respect to the Fiscal Year ended December 31, 2007, and (ii) within
one hundred and twenty (120) days after the end of each Fiscal Year commencing
with the Fiscal Year ending December 31, 2008, consolidated and
consolidating balance sheets of the Consolidated Group as at the end of such
Fiscal Year, and the related consolidated and consolidating statements of
income or operations, retained earnings, shareholders’ equity and cash flows
for such Fiscal Year, setting forth for each Fiscal Year, in comparative form
the figures as of the end of and for the previous Fiscal Year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by (i) a report and opinion of an independent certified public accountant
of nationally recognized standing satisfactory to the Administrative Agent,
which report and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any “going concern” or
like qualification or exception or any qualification or exception as to the
scope of such audit, and (ii) a Compliance Certificate by a Responsible
Officer of the Borrower Representative certifying such statements as fairly
presenting in all material respects the financial condition, results of
operations, shareholders’ equity and cash flows of the Consolidated Group in
accordance with GAAP;


 


(b)        as
soon as available, but in any event within sixty (60) days after the end of
each Fiscal Quarter of the Consolidated Group beginning with the Fiscal Quarter
ending March 31, 2008, consolidated and consolidating balance sheets of
the Consolidated Group as at the end of such Fiscal Quarter, and the related
consolidated and consolidating statements of income or operations, retained
earnings, shareholders’ equity and cash flows for such Fiscal Quarter and for
the portion of the Fiscal Year then ended, setting forth in comparative form
the figures as of the end of and for the corresponding Fiscal Quarter of the
previous Fiscal Year and the corresponding portion of the previous Fiscal Year,
all in reasonable detail and certified in a Compliance Certificate by a
Responsible Officer of the Borrower Representative as fairly presenting in all
material respects the financial condition, results of operations, shareholders’
equity and cash flows of the Consolidated Group in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes;
and


 


(c)         as
soon as available, but in any event within sixty (60) days after the end
of each calendar month, beginning with the calendar month ending February 29,
2008, consolidated balance sheets of the Consolidated Group as at the end of
such month, and the related consolidated statements of income or operations and
cash flows for such month, in accordance with GAAP, subject only to normal
year-end audit adjustments and the absence of footnotes.


 


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Section 6.02                 Certificates; Other
Information.  Deliver to
the Administrative Agent, in form and detail satisfactory to the Administrative
Agent:


 


(a)         concurrently
with the delivery of the financial statements referred to in Section 6.01(a),
a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor
no knowledge was obtained of any Default or Event of Default under any of the
financial covenants contained in Article VIII or, if any such
Default or Event of Default shall exist, stating the nature and status of such
event;


 


(b)        concurrently
with the delivery of the financial statements referred to in Section 6.01(a) or
in Section 6.01(b), a duly completed Compliance Certificate
executed by a Responsible Officer of the Borrower Representative; provided,
however, that for the purposes of Section 4.02(g) the
Borrower Representative shall issue a Compliance Certificate based on the
unaudited financial statements referred to in Section 6.01(a) for
the Fiscal Year ended December 31, 2007;


 


(c)         within
forty (45) days after end of each Fiscal Year, the annual business plan
and budget of the Loan Parties and their Domestic Subsidiaries containing,
among other things, projected financial statements for each Fiscal Quarter of
the next Fiscal Year;


 


(d)        copies
of any detailed audit reports, management letters or recommendations submitted
to the board of directors (or the audit committee of the board of directors) of
the Loan Parties and their Domestic Subsidiaries by independent accountants in
connection with the accounts or books of the Loan Parties and their Domestic
Subsidiaries, or any audit of any of them;


 


(e)         to
the extent that any Loan Party is a public company, promptly after the same are
available (and in any event within ten (10) days thereof), (i) copies
of each annual report, proxy or financial statement or other report or
communication sent to the stockholders of Holdings in their capacity as
stockholders and not otherwise required to be delivered to the Administrative
Agent pursuant hereto, (ii) all reports and written information to and
from the United States Environmental Protection Agency, or any state or local
agency responsible for environmental matters, the United States Occupational
Health and Safety Administration or any successor agencies or authorities
concerning environmental, health or safety matters, the occurrence of which
could reasonably be expected to have a Material Adverse Effect, and (iii) all
reports and written information to and from any state or local agency
responsible for health and safety matters, or any successor agencies or
authorities concerning environmental, health or safety matters, the occurrence
of which could reasonably be expected to have a Material Adverse Effect;


 


(f)         promptly
(and in any event within three (3) Business Days after a request
therefor), such additional information regarding the business, financial or
corporate affairs of any Loan Party or any 
Subsidiary, or compliance with the terms of


 


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the Loan Documents, as the Administrative Agent or any Lender may from
time to time reasonably request; and


 


(g)        within
fifteen (15) days after end of each Fiscal Year, a true and correct list
of all locations where any tangible personal property of any Loan Party having
a value greater than $500,000 is located (which list may include other
locations where the Borrowers carry out their Telecommunications Business).


 


Documents
required to be delivered pursuant to Section 6.01(a) or 6.01(b) or
Section 6.02(e) shall be deemed to have been delivered to the
extent any such documents are included in materials otherwise filed with the
SEC and available on the SEC’s EDGAR database and if so filed, shall be deemed
to have been delivered on the date: (i) on which the Borrowers post such
documents, or provide a link thereto on the Borrowers’ website on the Internet
at the website address listed on Schedule 12.02; or (ii) on
which such documents are posted on the Borrowers’ behalf on IntraLinks or
another relevant website, if any, to which the Administrative Agent has access
(whether a commercial, third party website or whether sponsored by the
Administrative Agent); provided, however, that, in each case, the
Borrowers shall notify (which may be by facsimile or electronic mail) the
Administrative Agent of the posting of any 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 Borrowers 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.


 


Section 6.03                 Notices.


 


(a)         Promptly
after any Borrower’s Knowledge thereof (and in any event within three (3) Business
Days) notify the Administrative Agent in writing of the occurrence of any
Default or Event of Default.


 


(b)        Promptly
after any Borrower’s Knowledge thereof (and in any event within three (3) Business
Days) notify the Administrative Agent in writing of any matter that has
resulted or could reasonably be expected to result in a Material Adverse
Effect.


 


(c)         Promptly
after any Borrower’s Knowledge thereof (and in any event within three (3) Business
Days) notify the Administrative Agent in writing of the occurrence of any ERISA
Event.


 


(d)        Promptly
after any Borrower’s Knowledge thereof (and in any event within three (3) Business
Days) notify the Administrative Agent in writing of (i) any material
change in accounting policies or financial reporting practices by any Loan Party
or any Subsidiary or (ii) the commencement against any Loan Party or any
Subsidiary of any involuntary case under any applicable Debtor Relief Law, now
or hereafter in effect, or any case, proceeding or other action for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such


 


83





















 


Person or for any substantial part of its Property or for the winding
up or liquidation of its affairs.


 


(e)         Promptly
after any Borrower’s Knowledge thereof (and in any event within three (3) Business
Days), notify the Administrative Agent, in writing, of any Proceeding
threatened against or affecting any Loan Party (i) in which the amount
involved or relief sought is in excess of $1,000,000, (ii) which seeks
injunctive relief that could reasonably be expected to result in a Material
Adverse Effect, (iii) which alleges criminal misconduct by any Loan Party,
(iv) which alleges violations of any Laws or Governmental Approvals and
could reasonably be expected to result in a Material Adverse Effect, or (v) which
alleges the violation of any law regarding, or seeks remedies in connection
with, any Environmental Liability, and could reasonably be expected to result
in a Material Adverse Effect.


 


(f)         Promptly
after any Borrower’s Knowledge thereof (and in any event within three (3) Business
Days), notify the Administrative Agent, in writing, of any notice of loss or
threatened loss of any applicable Governmental Approval that could reasonably
be expected to result in a Material Adverse Effect.


 


(g)        Promptly
after any Borrower’s Knowledge thereof (and in any event within two (2) Business
Days), notify the Administrative Agent, in writing, of (i) any loss,
damage or destruction to the Collateral in the amount of $1,000,000 or more
individually, whether or not covered by insurance or (ii) any change in
the information provided in the schedules to the Security Agreement.


 


(h)        Promptly
after any Borrower’s Knowledge thereof (and in any event within two (2) Business
Days) (i) notify the Administrative Agent of any communications with the
relevant PUCs with respect to the revocation of any such Required PUC Consent,
and (ii) provide the Administrative Agent with copies of all material
communications received or sent in writing to or from the PUCs with respect to
the revocation of such consents.


 


(i)          Immediately
upon the occurrence of, upon becoming aware of, or upon receipt of notice from
a third party to any Loan Party of, (i) any Loan Party’s default in any
material respect pursuant to the terms of any Material Contract or (ii) the
termination of, or the intent or threat to terminate, any such Material
Contract, notify the Administrative Agent in writing of such default,
termination or threat.


 


(j)          Upon
the written request of the Administrative Agent following the occurrence of any
event or the discovery of any condition which the Administrative Agent or the
Required Lenders reasonably believe has caused (or could be reasonably expected
to cause) the representations and warranties set forth in Section 5.09
to be untrue in any material respect, furnish or cause to be furnished to the
Administrative Agent, at the Loan Parties’ expense, a report of an
environmental assessment of reasonable scope, form and depth, (including, where
appropriate, invasive soil or groundwater sampling) by a consultant reasonably
satisfactory to the Administrative


 


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Agent as to the nature and extent of the presence of any Hazardous
Materials on any Facilities and as to the compliance by any Loan Party or any
of its Subsidiaries with Environmental Laws at such Facilities.  If the Loan Parties fail to deliver such an
environmental report within seventy five (75) days after receipt of such
written request then the Administrative Agent may arrange for same, and the
Loan Parties hereby grant to the Administrative Agent and its representatives
access to the Facilities to reasonably undertake such an assessment (including,
where appropriate, invasive soil or groundwater sampling).  The reasonable cost of any assessment
arranged for by the Administrative Agent pursuant to this provision will be
payable by the Loan Parties on demand and added to the obligations secured by
the Collateral Documents.


 


Each
notice pursuant to this Section 6.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower Representative setting forth
details of the occurrence referred to therein and stating what action the
Borrowers have taken and propose to take with respect thereto.  Each notice pursuant to Section 6.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.


 


Section 6.04                 Payment of Obligations.  Pay and discharge as the same shall become
due and payable (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by such Loan
Party or such Domestic Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its Property unless the same are being
contested in good faith by appropriate proceedings diligently conducted and
adequate reserves in accordance with GAAP are being maintained by such Loan
Party or such Domestic Subsidiary; (c) all other obligations, unless such
obligations are being contested in good faith by appropriate proceedings
diligently conducted or the failure to pay such obligations would not
reasonably be expected to have a Material Adverse Effect, and (d) all
obligations set forth under the Purchase and License Agreement between ACI and
Nortel Networks Inc., dated February 3, 2004 (as amended from time to
time) which are required to be paid, within the term ending thirty (30) days
after the expiration of the term set forth under said Purchase and License
Agreement, to discharge any Liens created on the equipment purchased by ACI
thereunder.


 


Section 6.05                 Preservation of Existence,
Etc.


 


(a)         Preserve,
renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 7.04
or Section 7.05.


 


(b)        Preserve,
renew and maintain in full force and effect its good standing under the Laws of
the jurisdiction of its organization.


 


(c)         Take
all reasonable action to maintain all rights, privileges, permits, licenses,
franchises, certifications and other Governmental Approvals as are necessary
for the conduct of its business as currently conducted and herein contemplated.


 


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(d)        Use
commercially reasonable efforts to preserve, register and renew whenever
applicable all of its material registered patents, copyrights, trademarks,
trade names and service marks.


 


Section 6.06                 Maintenance of Properties.


 


(a)         Maintain,
preserve and protect all of its Property necessary in the operation of its
business in good working order and condition, ordinary wear and tear, and
Involuntary Dispositions and Dispositions permitted pursuant to Section 7.05
excepted.


 


(b)        Use
the standard of care typical in the industry in the operation and maintenance
of its Facilities.


 


Section 6.07                 Maintenance of Insurance.  (a) Maintain at its own expense, with
insurers reasonably satisfactory to the Administrative Agent and Lenders, and
otherwise comply in all material respects with all terms and conditions of, the
following insurance coverages:


 


(i)            All
Risk Property and Equipment Breakdown Insurance.  “All risk” or “special form” property
insurance against direct physical loss or damage on an all risks basis,
including, to the extent applicable and available on commercially reasonable
terms, flood, windstorm and earthquake, as applicable, and business
interruption coverage, when applicable, subject to a maximum deductible of
$250,000.  The Property shall be insured
for the full replacement cost and such policy shall not contain a co-insurance
clause;


 


(ii)           Network
Security Liability/Cyber Liability/E&O Insurance and Professional Liability
or E&O Insurance for professional Services. Errors and omissions
coverage for Borrowers’ professional services and coverage for network security
liability, which coverage includes Borrower’s business of providing fiber and
connectivity, with an aggregate limit of not less than $2,000,000, subject to a
maximum deductible of $500,000;


 


(iii)          Commercial
General Liability Insurance.  Commercial
general liability insurance written on an occurrence basis with a limit of not
less than $1,000,000 per each occurrence. 
Such coverage shall include, but not be limited to, premises/operations,
blanket contractual liability, independent contractors, broad form products and
completed operations, personal injury, fire legal liability and employee
benefits liability.  Such insurance shall
not exclude coverage for punitive or exemplary damages where insurable by law;


 


(iv)          Workers’
Compensation/Employer’s Liability. Workers’ compensation insurance in
accordance with statutory provisions covering accidental injury, illness or
death of an employee of the Loan Parties and their Domestic Subsidiaries while
at work or in the scope of his or her employment with the Loan Parties and
their Domestic Subsidiaries with a policy limit of no less than the


 


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statutory amount and employer’s liability insurance with a policy limit
of not less than $500,000.  Such coverage
shall not contain any occupational disease exclusions;


 


(v)           Automobile
Liability.  Automobile liability
insurance covering owned, non-owned, leased, hired or borrowed vehicles against
bodily injury or property damage.  Such
coverage shall have a limit of not less than $1,000,000. Automobile Physical
Damage (Comprehensive/Collision) coverage for owned titled vehicle;


 


(vi)          Excess/Umbrella
Liability.  Excess or umbrella
liability insurance in an amount not less than $5,000,000, written on an
occurrence basis providing coverage limits in excess of the insurance limits
required under Sections  6.07(a)(iv) (employer’s liability
only), and 6.07(a)(v).  Such
insurance shall follow from the primary insurances and drop down in case of
exhaustion of underlying limits and /or aggregates.  Such insurance shall not exclude coverage for
punitive or exemplary damages where insurable by law; and


 


(vii)         Other
Insurance.  Such other insurance to
such extent and against such risks, as are reasonably required by and reasonably
satisfactory to the Administrative Agent.


 


(b)        Certain
Provisions Relating to Insurance Coverage. Within the term ending thirty
(30) days after the Closing Date, the Borrowers shall cause each insurance
policy (other than any policy referred to in clause (a)(iv) above related
to workers’ compensation) pertaining to the insurable properties to (i) name
the Administrative Agent as an “additional insured” if such policy is a
liability policy, (ii) name the Administrative Agent for itself and on
behalf of Secured Parties as “loss payee” if such policy is a property and/or
equipment policy, (iii) provide that the Borrowers’ insurer, broker or
agent will endeavor to notify the Administrative Agent in writing of any
proposed cancellation or material change of such policy initiated by the
Borrowers’ insurer, at least thirty (30) days in advance prior to any proposed
cancellation or material change in risk, (iv) contain a waiver of
subrogation in favor of the Administrative Agent for itself and on behalf of
Secured Parties, (v) contain a Lender’s Loss Payee endorsement, or
language comparable thereto, which is satisfactory to the Administrative Agent, (vi) in
the case of commercial general liability insurance, contain a separation of
insureds clause, and (vii) in the case of commercial general liability
insurance, provide that the insurance shall be primary and without right of
contribution from any other insurance which may be available to the
Administrative Agent and Secured Parties;


 


(c)         Evidence
of Insurance.  From time to time, at
the reasonable request of the Administrative Agent, the Borrowers shall furnish
or cause to be furnished a certificate of insurance (i) evidencing that
all the coverages listed in this Section 6.07 continue to be in
full force and effect, (ii) specifying the insurers with whom the
insurances are carried,  (iii) specifying
the deductibles for such coverages, which deductibles shall meet the
requirements of this Section 6.07 or shall otherwise be


 


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acceptable to Administrative Agent, and (iv) containing such other
certifications and undertakings as are customarily provided to lenders, as
reasonably requested by the Administrative Agent.


 


(d)        Administrative
Agent May Obtain Insurance.  In
the event that the Borrowers shall default in the performance of their
obligations under this Section 6.07, the Administrative Agent may,
at its option and providing prior written notice to the Borrower
Representative, effect such insurance coverage with an insurer reasonably
satisfactory to the Administrative Agent and add the premium(s) paid
therefor to the principal amount of the Obligations incurred pursuant hereto,
and the amount of such premium shall be payable by the Borrowers on demand with
interest thereon at the highest rate payable hereunder.


 


Section 6.08                 Compliance with Laws. Except as set
forth in Schedule 6.08 hereof, comply with the requirements of all Laws
and Governmental Approvals applicable to it (including Environmental Laws and
all applicable rules and regulations of the U.S Postal Service) and all
orders, writs, injunctions and decrees applicable to it or to its business or
Property, except in such instances in which such requirement of Law or order,
writ, injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted with appropriate reserves posted or the
failure to comply would not reasonably be expected to have a Material Adverse
Effect. Except as set forth in Schedule 6.08 hereof, each Loan Party shall,
and shall cause each of its Domestic Subsidiaries to, duly and timely file all
material reports, statements and filings that are required to be filed by any
of them with respect to Licenses under the Communications Act, and comply in
all material respects therewith, including without limitation the rules and
regulations of the FCC.  Each Loan Party
shall comply in all respects with all PUC licenses and the applicable state
telecommunications Laws, except any such failure which, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
or result in any Loan Party not being authorized to own or operate any portion
of such Loan Party’s Property, or incur or remain liable with respect to any of
the Obligations or Liens granted as security therefor.


 


Section 6.09                 Books and Records.


 


(a)         Maintain
proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of such Loan Party
or such its Subsidiary, as the case may be.


 


(b)        Maintain
such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
such Loan Party or such Subsidiary, as the case may be; provided, however,
that as of the Closing Date and until December 31, 2008, Section 6.08
and this Section 6.09(b) will not apply with respect to
exceptions to compliance with laws described in Schedule 6.08.


 


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Section 6.10                 Inspection Rights; Annual
Meeting.


 


(a)         Permit
representatives and independent contractors of the Administrative Agent to
visit and inspect any of its properties, to examine its corporate, financial
and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at the expense of the Borrowers and at such
reasonable times during normal business hours and as often as may be reasonably
desired, and as long as no Default or an Event of Default has occurred and is
continuing, upon reasonable advance notice to the Loan Parties not more than
one (1) time each calendar year; provided, however, that
when a Default or an Event of Default has occurred and is continuing, the
Administrative Agent or any Lender (or any of their respective representatives
or independent contractors) may do any of the foregoing at the expense of the
Loan Parties at any time and from time to time during normal business hours and
without advance notice.


 


(b)        Permit
representatives and independent contractors of the Administrative Agent to
conduct an audit of the Collateral at the expense of the Loan Parties (not to
exceed $10,000 with respect to any such audit) upon reasonable advance notice
to the Loan Parties at least once annually and at any time during the
continuance of an Event of Default.


 


Section 6.11                 Use of Proceeds.


 


(a)         Use
the proceeds of the Term Loan, the Delayed Draw Loans and the Revolving Loans: (i) to
make Capital Expenditures and other general corporate purposes, (ii) to
fund future Permitted Acquisitions, (iii) to fund Foreign Subsidiaries,
subject to the terms set forth in Section 7.02(f) hereof and (iv) to
pay transaction costs related to the consummation of the transactions
contemplated hereunder.


 


(b)        Notwithstanding
the foregoing, in no event shall the proceeds of the Credit Extensions be used
in contravention of any Law or any Loan Document.


 


Section 6.12                 Additional Domestic
Subsidiaries.


 


Simultaneously with (or within such
longer period as the Administrative Agent may provide in writing in its sole
discretion) any Permitted Acquisition or formation of any Domestic Subsidiary:


 


(a)         notify
the Administrative Agent thereof in writing, together with (i) jurisdiction
of formation, (ii) number of shares of each class of Equity Interest
outstanding, where applicable, (iii) number and percentage of outstanding
shares of each class owned (directly or indirectly) by any Loan Party or any
Domestic Subsidiary and (iv) number and effect, if exercised, of all
outstanding options, warrants, rights of conversion or purchase and all other
similar rights with respect thereto; and


 


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(b)        cause
such Domestic Subsidiary to (A) become a Borrower or a Guarantor (to be
determined by the Administrative Agent in its sole discretion) by executing and
delivering to the Administrative Agent a Joinder Agreement or such other
document as the Administrative Agent shall deem appropriate for such purpose,
and (B) deliver to the Administrative Agent documents of the types
referred to in Section 4.01(b), (c), (d), and (e) (which,
in the case of any collateral agreement of any applicable Acquisition Document,
shall be signed by the Seller thereof) and opinions of counsel to such Person
(which shall cover, among other things, the legality, validity, binding effect
and enforceability of the documentation referred to in clause (A)), all in
form, content and scope reasonably satisfactory to the Administrative Agent.


 


Section 6.13                 ERISA Compliance.  Do, and cause each of its ERISA Affiliates to
do, each of the following:  (a) maintain
each Plan in compliance in all material respects with the applicable provisions
of ERISA, the Internal Revenue Code and other federal or state Law; (b) cause
each Plan that is qualified under Section 401(a) of the Internal
Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section 412 of the Internal Revenue
Code.


 


Section 6.14                 Pledged Assets.


 


(a)         Subject
to Sections 6.14(c), at all times, (i) cause all Collateral
(other than Excluded Accounts) now or hereafter owned or leased by any Loan
Party to be subject at all times to first priority, perfected Liens (except for
Permitted Liens) to secure the Obligations pursuant to the terms and conditions
of the Collateral Documents and (ii) deliver such other documentation as
the Administrative Agent may reasonably request in connection with the
foregoing, including appropriate UCC financing statements, certified
resolutions and other organizational and authorizing documents of such Person
and opinions of counsel to such Person (which shall cover, among other things,
the legality, validity, binding effect and enforceability of the documentation
referred to above and the perfection of the Administrative Agent’s Liens
thereunder), all in form, content and scope satisfactory to the Administrative
Agent.


 


(b)        Without
limiting the generality of the above, the Loan Parties will cause 100% of the
issued and outstanding Equity Interest of each Domestic Subsidiary (but no
Equity Interest of any Foreign Subsidiary) and 100% of the Equity Interests
held by the Loan Parties in MediaXstream, LLC to be subject at all times to a
first priority, perfected Lien in favor of the Administrative Agent pursuant to
the terms and conditions of the Collateral Documents or such other security
documents as the Administrative Agent shall request.


 


(c)         With
respect to each Account for which either the perfection, enforceability, or
validity of the Administrative Agent’s Liens in such Account, or the
Administrative Agent’s right or ability to obtain direct payment to the
Administrative Agent of the proceeds of such Account, is governed by any
federal, state, or local statutory requirements other than those of the UCC,
the Loan Parties will take such steps as the Administrative Agent may from time
to time reasonably request, provided


 


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that the Loan Parties shall not be required to take any
action under this Section 6.14(c) unless the aggregate amount
of such Accounts governed by statutory requirements other than the UCC exceeds
$250,000 at any time.


 


(d)           Each Loan Party shall also grant to
the Administrative Agent a first priority perfected security interest in any
additional property it owns or acquires, to secure the Obligations pursuant to
the terms of the Loan Documents.


 


Section 6.15                 Covenant
with Respect to Environmental Matters.  In respect of all environmental matters:


 


(a)           comply in all material respects with
the requirements of all federal, state, and local Environmental Laws applicable
to the Loan Parties or their Property; notify the Administrative Agent promptly
in the event of any spill, release or disposal of Hazardous Material on, or
hazardous waste pollution or contamination affecting, the Facilities in
material violation of applicable Environmental Laws of which a Loan Party has
actual knowledge; forward to the Administrative Agent promptly any written
notices relating to such matters received from any Governmental Authority; and
pay when due any fine or assessment against the Facilities provided, however,
that the Loan Parties shall not be required to pay any such fine or assessment
so long as the validity thereof shall be diligently contested in good faith by
appropriate proceedings and they shall have set aside on their books reasonable
reserves (in accordance with GAAP) with respect to any such fine or assessment
so contested; and provided  further that, in any event, payment of
any such fine or assessment shall be made before any of their Property shall be
subjected to a Lien or be seized or sold in satisfaction thereof;


 


(b)           promptly notify the Administrative
Agent upon becoming aware of any fact or change in circumstances that would be
expected to cause any of the representations and warranties contained in Section 5.09
to cease to be true in all material respects for any time before the
Termination Date;


 


(c)           not become involved, and will not
knowingly permit any tenant of the Facilities to become involved, in any
operations at the Facilities generating, storing, disposing, or handling
Hazardous Materials in material violation of applicable Environmental Laws or
any other activity that could lead to the imposition on any Lender or the
Administrative Agent of any liability, or the imposition on the Loan Parties or
the Facilities of any material liability or any lien under any Environmental
Laws;


 


(d)           promptly contain or remove any
Hazardous Materials found on the Facilities in violation of any applicable
Environmental Law, which containment or removal must be done in compliance with
applicable Environmental Laws and at the Borrowers’ expense; and the Borrowers
agree that the Administrative Agent has the right, at its sole option but at
the Borrowers’ expense, to have an environmental engineer or other
representative review the work being done; and


 


 


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(e)           indemnify, protect, defend, and hold
harmless each Indemnitee from and against any and all liabilities, obligations,
losses, damages (including, consequential damages), penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or nature
whatsoever (including, the reasonable fees and disbursements of counsel for and
consultants of such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall be
designated a party thereto), which may be imposed on, incurred by, or asserted
against such Indemnitees (whether direct, indirect, or consequential) now or
hereafter arising as a result of any claim for environmental cleanup costs, any
resulting damage to the environment and any other environmental claims against
any Loan Party, any Lender, the Administrative Agent, any other Indemnitee or
the Facilities.  The provisions of this Section 6.15(e) shall
continue in effect and shall survive the Termination Date.


 


Section 6.16                 Securities Account Control
Agreement. The Loan Parties shall, within the period of sixty
(60) days following the Closing Date, enter into a Securities Account Control
Agreement with the Administrative Agent with respect to all of the securities
accounts held by the Loan Parties, in a form satisfactory to the Administrative
Agent. The Loan Parties shall (i) not deposit any securities, cash or cash
equivalents in any such securities accounts until such time as the Loan Parties
execute such Securities Account Control Agreement(s) and (ii) thereafter,
deposit all such securities, cash or cash equivalents in the securities
accounts subject to such agreement.


 


Section 6.17                 Lenders Meetings.  The Loan Parties will, upon the request of
the Administrative Agent, participate in one meeting of the Administrative
Agent and Lenders during each Fiscal Year to be held at the Borrowers’
corporate offices (or at such other location as may be agreed to by the
Borrowers and the Administrative Agent) at such time as may be agreed to by the
Borrowers and the Administrative Agent.


 


Section 6.18                 Non-Consolidation.  Unless otherwise consented to by the
Administrative Agent or Required Lenders, the Loan Parties will and will cause
each of their Domestic Subsidiaries to: (i)  maintain entity records and
books of account separate from those of any other Person which is not a member
of the Consolidated Group; (ii) not commingle its funds or assets with
those of any other Person which is not a member of the Consolidated Group; (iii) provide
that its board of directors or other analogous governing body will hold all
appropriate meetings to authorize and approve such entity’s actions, which
meetings will be separate from those of other entities; and (iv) not file
consolidated tax returns with any other Person other than members of the
Consolidated Group.


 


Section 6.19                 Syndication.  Through the date six (6) months after
the Closing Date, the Loan Parties agree to cooperate with the Agents, and
agree to cause each of their Domestic Subsidiaries to cooperate with the
Agents, in connection with (i) the preparation of an information package
regarding the business, operations, financial projections and prospects of the
Loan Parties and their Domestic Subsidiaries including the delivery of all
information relating to the transactions contemplated hereunder prepared by or
on behalf of the Loan Parties and their Domestic Subsidiaries deemed reasonably
necessary by the Agents to complete the 


 


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syndication of the credit facilities under
this Agreement and (ii) the presentation of an information package
reasonably satisfactory in format and content to the Agents in meetings and
other communications with prospective Lenders in connection with the
syndication of the credit facilities hereunder (including direct contact
between senior management and representatives of the Loan Parties and their
Domestic Subsidiaries with prospective Lenders and participation of such
persons in meetings).  Without limiting
the foregoing, the Loan Parties authorize the use of their respective logos in
connection with any such dissemination. 
At the request of the Administrative Agent, the Loan Parties agree to
prepare a version of the information package and presentation that does not
contain material non-public information concerning the Loan Parties or their
Affiliates or their securities.


 


Section 6.20                 Tax Returns. The Borrowers
shall (i) file the tax returns and reports set forth in Schedule 5.11
hereof no later than December 31, 2008 and (ii) otherwise file all
federal, state and other material tax returns and reports required to be filed,
except for those which are being contested in good faith by appropriate
proceedings diligently conducted and/or for which adequate reserves have been
provided in accordance with GAAP.


 


Section 6.21                 Opinions. The Loan
Parties agree to provide, within the thirty (30) days following the Closing
Date, a favorable opinion from Cooley Godward Kronish LLP, counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, regarding the
Issuers who are not Loan Parties as of the date hereof (except MediaXstream,
LLC), in form and substance satisfactory to the Administrative Agent.


 


ARTICLE VII



NEGATIVE COVENANTS


 


So
long as any Lender shall have any Revolving Commitment or any Delayed Draw
Commitment hereunder or any Loan or other Obligation hereunder shall remain
unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no
Loan Party shall, nor shall it permit any Domestic Subsidiary (or any
Subsidiary, if specified below), to directly or indirectly:


 


Section 7.01                 Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its Property, whether now owned or hereafter acquired, other
than the following:


 


(a)           Liens
granted pursuant to any Loan Document;


 


(b)           Liens
existing on the Closing Date and listed on Schedule 7.01 and any
modifications, replacements, renewals or extensions thereof, provided
that the Property covered thereby is not increased and any modification, replacement,
renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.03(b);


 


(c)           Liens
(other than Liens imposed under ERISA) for taxes, assessments or governmental
charges or levies not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves 


 


 


93





















 


with respect thereto are maintained on the books of the applicable
Person in accordance with GAAP;


 


(d)           statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen
and suppliers and other Liens imposed by law or pursuant to customary
reservations or retentions of title arising in the ordinary course of business,
provided that such Liens secure only amounts not yet due and payable or,
if due and payable, are unfiled and no other action has been taken to enforce
the same or are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established;


 


(e)           pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;


 


(f)            deposits
to secure the performance of bids, trade contracts, licenses and leases (other
than Indebtedness), statutory obligations, surety bonds (other than bonds
related to judgments or litigation), performance bonds, the collateralized
portion of letters of credit (other than Letters of Credit), and other
obligations of a like nature incurred in the ordinary course of business; provided,
however, that in no event should the aggregate amount of surety bonds
(or deposits to secure surety bonds) or of letters of credit, outstanding at
any time exceed $12,000,000;


 


(g)           easements,
rights-of-way, restrictions and other similar encumbrances or defects in title
affecting owned or licensed or leased real property which, in the aggregate,
are not substantial in amount, and which do not in any case materially
interfere with the ordinary conduct of the business of the applicable Person;


 


(h)           Liens
securing purchase money obligations; provided that (i) such Liens
do not at any time encumber any Property other than the Property financed by
such purchase money obligations, (ii) the purchase money obligations
secured thereby does not exceed the cost of the Property being acquired on the
date of acquisition and (iii) such Liens attach to such Property
concurrently with or within thirty (30) days after the acquisition
thereof;


 


(i)            leases,
IRUs, licenses (including licenses of IP Rights) or subleases granted to others
in accordance with the terms of the applicable Collateral Documents, not
interfering in any material respect with the ordinary conduct of business of
any Loan Party or any Domestic Subsidiary and not resulting in any material
diminution in the Collateral as security for the Obligations;


 


(j)            any
interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) solely evidencing such lessor’s interest under, leases permitted
by this Agreement;


 


(k)           Intentionally
omitted.


 


 


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(l)            normal
and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions holding such deposits;


 


(m)          Liens
of a collection bank arising under Section 4-210 of the UCC on items in
the course of collection;


 


(n)           Liens
assumed in connection with any Permitted Acquisition;


 


(o)           Liens
securing judgments for the payment of money, not constituting an Event of
Default under Section 9.01(h), to the extent  the Borrowers remove such Lien (either by
providing a bond or otherwise), within thirty (30) days following the date on
which the Borrower was served of the existence of, or was otherwise made aware
of, such Lien; and


 


(p)           other
Liens with an aggregate fair value  with an aggregate fair value not to exceed $2,000,000, provided
that no such Lien shall reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.


 


Section 7.02                 Investments.  Make or maintain any Investments, except:


 


(a)           cash
or Cash Equivalents so long as such Investments are maintained in accounts
subject to a Deposit Account Control Agreement or in the Excluded Accounts;


 


(b)           accounts
receivable created, acquired or made and trade credit extended in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms;


 


(c)           Investments
consisting of stock, obligations, securities or other property received in
settlement of accounts receivable (created in the ordinary course of business)
from bankrupt obligors;


 


(d)           Investments
existing as of the Closing Date and set forth in Schedule 7.02;


 


(e)           Guarantees
permitted by Section 7.03(h);


 


(f)            Investments
in Foreign Subsidiaries or in Domestic Subsidiaries of the Borrowers which are
not Loan Parties, following the Closing Date, in an aggregate amount not to
exceed $15,000,000 and provided that such funding shall be made as intercompany
Indebtedness, subject to the terms set forth in Section 7.03(e) hereof;


 


(g)           Investments
by (A) any Loan Party in any other Loan Party and (B) Subsidiaries
that are not Loan Parties in other Subsidiaries that are not Loan Parties;


 


(h)           short
term loans to employees in the ordinary course of business in an aggregate
amount not to exceed $100,000 in the aggregate at any time;


 


 


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(i)            Investments
consisting of Hedge Agreements permitted under Section 7.03(d);


 


(j)            additional
Investments in a Person which is not a member of the Consolidated Group, in an
aggregate amount not to exceed in any Fiscal Year $5,000,000 in cash, and


 


(k)           additional
Investments in a Person which is not a member of the Consolidated Group, in an
aggregate amount not to exceed in any Fiscal Year $20,000,000 in kind in the
form of services provided to such Person and the value of such services for the
purposes of determining compliance with this Section shall be determined
based on the arms-length fees charged by the Domestic Subsidiaries to unrelated
third parties in the ordinary course of business and consistent with past
practices.


 


Section 7.03                 Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)           Indebtedness
under the Loan Documents;


 


(b)           Indebtedness
of the Loan Parties and their Subsidiaries existing on the Closing Date and set
forth in Schedule 7.03 (and renewals, refinancings, and extensions
thereof on terms and conditions satisfactory to the Administrative Agent in its
sole discretion);


 


(c)           purchase
money Indebtedness (including obligations in respect of Capital Leases but
excluding Synthetic Leases), hereafter incurred by the Loan Parties or any of
their Domestic Subsidiaries to finance the purchase of fixed assets (and
renewals, refinancings, and extensions thereof), provided that, in each
case, (i) such Indebtedness when incurred shall not exceed the purchase
price of the asset(s) financed, (ii) no such Indebtedness shall be
renewed, refinanced or extended for a principal amount in excess of the
principal balance outstanding thereon at the time of such renewal, refinancing
or extension and (iii) the total amount of all such Indebtedness at any
time outstanding shall not exceed $20,000,000;


 


(d)           obligations
(contingent or otherwise) of any Loan Party or any Domestic Subsidiary existing
or arising under any Secured Hedge Agreement and obligations (contingent or
otherwise) of any Loan Party or any Domestic Subsidiary existing or arising
under any other Hedge Agreement, provided that (i) such obligations
are (or were) entered into by such Person in the ordinary course of business
for the purpose of directly mitigating risks associated with liabilities,
commitments, investments, assets, or property held or reasonably anticipated by
such Person, or changes in the value of securities issued by such Person, and
not for purposes of speculation or taking a “market view;” and (ii) such
other Hedge Agreement does not contain any provision exonerating the
non-defaulting party from its obligation to make payments on outstanding
transactions to the defaulting party;


 


 


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(e)           intercompany
Indebtedness (i) permitted under Section 7.02(f) or (ii) to
other Loan Parties or their Domestic Subsidiaries; provided  that
any such intercompany Indebtedness in excess of $250,000 in the aggregate
during any Fiscal Year shall be evidenced by a promissory note and such note
shall be pledged, be subordinated to the Obligations and delivered to the
Administrative Agent pursuant to the Security Agreement as additional
collateral security for the Obligations except that (I) the intercompany
Indebtedness incurred by the Loan Parties in favor of the Foreign Subsidiaries
MFN Japan KK, a Japanese corporation, Metromedia Fiber Network Canada, Inc.,
a Canadian corporation, AboveNet Communications Europe Limited and AboveNet
Communications UK Ltd., and (II) existing Indebtedness described in letter
“(ii)” above; in each case, shall be documented by a promissory note, to be
pledged and delivered to the Administrative Agent pursuant to this Section 7.03(e),
within the sixty (60) days following the Closing Date;


 


(f)            the
uncollateralized portion of letters of credit (other than Letters of Credit),
in an aggregate stated amount not to exceed $5,000,000 at any time outstanding
and issued in the ordinary course of business in lieu of surety and performance
bonds;


 


(g)           Indebtedness
incurred to effect a Permitted Acquisition, provided that the following
conditions are met: (i) the relevant Borrower shall be the surviving
entity in connection with the Permitted Acquisition, if structured as a merger,
(ii) the pro forma ratio of Consolidated Indebtedness to Consolidated
EBITDA, based on the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b) and after giving
effect to the intended Permitted Acquisition, shall not exceed 1.75 to 1.0, (iii) amortization
of principal shall not be payable by any Loan Party under such Indebtedness
before the date that is one (1) year after the Maturity Date and (iv) such
Indebtedness shall be unsecured; and


 


(h)           Guarantees
with respect to Indebtedness permitted under this Section 7.03.


 


Section 7.04                 Fundamental Changes;
Acquisitions.  (a) Except
for Permitted Acquisitions, merge, dissolve, liquidate, consolidate with or
into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person; provided, however,
that, notwithstanding the foregoing provisions of this Section 7.04
but subject to the terms of Sections 6.12 and 6.14 (i) any
Loan Party may merge or consolidate with any other Loan Party, provided
that, if such transaction involves a Borrower, a Borrower is the surviving
entity, (ii) any Domestic Subsidiary may merge with any Person that is not
a Loan Party in connection with a Disposition permitted under Section 7.04(b),
and (iii) any Loan Party other than a Borrower may dissolve, liquidate or
wind up its affairs at any time provided that such dissolution, liquidation or
winding up, as applicable, could not reasonably be expected to have a Material
Adverse Effect and all of its assets and business is transferred to another
Loan Party.


 


 


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(b) As used herein, the
term “Permitted Acquisition”
shall mean any Acquisition of a Person in the Telecommunications Business, provided, however,
that, in each case, the following conditions shall have been satisfied in full:


 


(A)  If such Acquisition involves the purchase of stock or other
ownership interests, the same shall be effected in such a manner as to assure
that the acquired entity is promptly merged into any Borrower, with any
Borrower being the surviving entity or the acquired entity becomes either an
additional Borrower or a Guarantor hereunder (if such Domestic Subsidiary is
receiving any Loan proceeds) pursuant to its execution of a Joinder Agreement
and Loan Documents in form and substance acceptable to the Administrative
Agent, or, in all other cases, a Guarantor of the Loan Documents pursuant to a
Guaranty in substantially the same form executed by the Guarantors on the
Closing Date or otherwise in form and substance acceptable to the
Administrative Agent.


 


(B)   (1) No later than ten (10) Business Days prior to the
consummation of any such Acquisition, the Borrower Representative shall have delivered
to the Administrative Agent copies of executed counterparts of such Acquisition
agreement, together with all schedules thereto, the forms of any additional
agreements or instruments to be executed at the closing thereunder (to the
extent available), and all applicable financial information, including three (3) years
of financial statements, to the extent available (including, without
limitation, trailing twelve month financial statements for each Person to be
acquired, and current accounts receivable and accounts payable agings), a
detailed Capital Expenditures budget and five (5) year projections,
updated to reflect such Acquisition and any related transactions, a pro  forma
balance sheet of the Borrowers and their Subsidiaries as of the projected date
of the Permitted Acquisition showing the financial condition of the
consolidated entities after giving effect to the proposed Acquisition, and a
description of the properties and business accompanied by applicable
information as the Administrative Agent shall reasonably require, (2) promptly
following a request therefor, the Borrower Representative shall have delivered
to the Administrative Agent copies of such other documents relating to such
Acquisition as the Administrative Agent shall have reasonably requested, and (3) 
promptly following the consummation of such Acquisition, the Borrower
Representative shall have delivered to the Administrative Agent certified
copies of the agreements, instruments and documents referred to above, to the
extent the same have been executed and delivered at the closing under such
Acquisition Agreement.


 


(C)   Except for the employment agreements, consulting agreements or
other personal service agreements, the aggregate purchase price (either in cash
or in kind) payable by the Borrowers or their Domestic Subsidiaries in
connection with such Acquisition (other than earn-outs, customary post-closing
adjustments, escrows, holdbacks, indemnities and seller notes and
non-competition agreements permitted by the Required Lenders) shall be payable
in full on the date of such 


 


 


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Acquisition or, if payable in installments,
shall be subordinated in writing to the Obligations on terms satisfactory to
the Administrative Agent.


 


(D)  The Borrowers and their Subsidiaries shall not, in connection with
any such Acquisition, assume or remain liable with respect to any Indebtedness
of the related seller, except (i) to the extent permitted under Section 7.03
and (ii) obligations of the seller incurred in the ordinary course of
business and necessary or desirable to the continued operation of the
underlying properties or business, and any other such liabilities or
obligations not permitted to be assumed or otherwise supported by any Borrower
or its Subsidiaries hereunder shall be paid in full or released as to the
assets being so acquired on or before the consummation of such Acquisition.


 


(E)   All other assets and properties acquired in connection with any
such Acquisition shall be free and clear of any Liens, charges and other
encumbrances other than Permitted Liens and shall, to the extent such assets
and properties are deemed by the Administrative Agent to be “Collateral” as
defined in the Security Agreement, be promptly made subject to the Liens and
security interests under the Collateral Documents.


 


(F)   Each Borrower and its Subsidiaries shall have executed and
delivered such additional agreements, instruments, certificates, documents,
consents, environmental site assessments, engineering studies and reports,
opinions and other papers as the Administrative Agent may reasonably require
and which relate to the properties to be acquired.


 


(G)   Immediately prior to any such Acquisition and after giving effect
thereto, no Default or Event of Default shall have occurred or be continuing
(unless waived in writing by the Required Lenders) determined on a pro  forma
basis as of the end of and for the fiscal quarter most recently ended prior to
the date of such Acquisition for which financial statements are required to be
provided (and have been so delivered) under Section 6.01, and the
Borrower Representative shall provide to the Administrative Agent a certificate
signed on behalf of each Borrower by its president or chief financial officer,
demonstrating such compliance in reasonable detail.


 


(H)  The aggregate consideration paid shall not exceed $100,000,000 in
the aggregate.


 


(I)    Such Acquisition shall only involve assets located in the United
States, or those assets which would not subject any Agent or Lender (in their
capacity as such) to regulatory or third party approvals in connection with the
exercise of its rights and remedies under this Agreement or any other Loan
Document, other than approvals applicable to the exercise of such rights and
remedies with respect to the Borrower prior to such acquisition.


 


 


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(J)    All transactions in
connection therewith shall be consummated, in all material respects, in
accordance with all applicable laws and in conformity with all applicable
Governmental Approvals.


 


(K)  None of the Borrowers, any Loan Party or any of its Domestic
Subsidiaries shall be the subject of a bankruptcy or insolvency proceeding
under any Debtor Relief Laws.


 


Section 7.05                 Dispositions.  Make any Disposition; provided that


 


(a)         the
Loan Parties may make Dispositions of assets having a fair market value not to
exceed $5,000,000 in any Fiscal Year so long as the proceeds of such
Dispositions consist solely of cash;


 


(b)        the
Loan Parties and their Domestic Subsidiaries may make other Dispositions in any
Fiscal Year of assets having an aggregate fair market value of not greater than
$10,000,000.


 


(c)         subject
to Section 2.05(b)(ii), the Loan Parties may make Dispositions of
Non-Core Assets at any time, so long as the proceeds of such Dispositions
consist solely of cash.


 


Section 7.06                 Restricted
Payments.  Directly or
indirectly declare or make any Restricted Payment or incur any obligation to do
so, except that:


 


(a)           each
Domestic Subsidiary may make Restricted Payments (directly or indirectly) to
any Borrower; and


 


(b)           each
Loan Party and each Domestic Subsidiary may declare and make dividend payments
or other distributions payable solely in the Equity Interest of the Person
making such dividend or distribution.


 


Section 7.07                 Change in Nature of Business.  Engage in any line of business materially
different from those lines of business conducted by the Loan Parties and their
Subsidiaries on the Closing Date.


 


Section 7.08                 Transactions with Affiliates
and Insiders.  Enter into
or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) transactions between
the Loan Parties, (b) intercompany transactions expressly permitted by Section 7.02,
Section 7.03, Section 7.04, Section 7.05 or
Section 7.06, (c) Permitted Equity Repurchases, (d) 
compensation and reimbursement of expenses of officers and directors (i) in
the ordinary course of business, or (ii) that is approved by the Board of
Directors of Holdings or the applicable Loan Party, (e) services rendered
by a Loan Party to any Foreign Subsidiary or to any Domestic Subsidiary which
is not a Loan Party, to the extent the value of such services rendered by all
Loan Parties does not exceed $1,000,000 in the aggregate during any Fiscal
Year, and the value of such services for the purposes of determining compliance
with this Section shall be determined based on the arms-length fees
charged by the Domestic


 


 


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Subsidiaries to unrelated third parties in
the ordinary course of business and consistent with past practices, certified
annually, (f) Equity Interests granted by Holdings to employees in
management of Foreign Subsidiaries in accordance with plans approved by the
board of directors of Holdings and (g) except as otherwise specifically
limited in this Agreement, other transactions which are entered into in the
ordinary course of such Person’s business on terms and conditions substantially
as favorable to such Person as would be obtainable by it in a comparable arms
length transaction with a Person other than an officer, director or Affiliate.


 


Section 7.09                 Burdensome Agreements.  Other than Contractual Obligations relating
to assets described in item “(i)” or “(ii)” of the definition of “Excluded
Assets” and existing on the date hereof, enter into or permit to exist any
Contractual Obligation that encumbers or restricts the ability of any Loan
Party or any Subsidiary to (a) pay dividends or make any other distributions
to any Loan Party on its Equity Interest or with respect to any other interest
or participation in, or measured by, its profits, (b) pay any Indebtedness
or other obligation owed to any Loan Party, (c) make loans or advances to
any Loan Party, (d) sell, lease or transfer any of its Property to any
Loan Party, (e) grant any Lien on any of its Property, other than Property
in an aggregate amount not to exceed $5,000,000 in the aggregate at any one
time, to secure the Obligations pursuant to the Loan Documents or any renewals,
refinancings, exchanges, refundings or extension thereof or (f) act as a
Loan Party pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof, except (in respect of any of the
matters referred to in clauses (a)-(e) above) for (i) this
Agreement and the other Loan Documents, (ii) any document or instrument
governing Indebtedness incurred pursuant to Section 7.03(c), provided
that any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (iii) any Permitted Lien
or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien and (iv) customary restrictions and
conditions contained in any agreement relating to the sale of any Property
permitted under Section 7.05 pending the consummation of such sale.


 


Section 7.10                 Use of Proceeds.  Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund Indebtedness originally
incurred for such purpose.


 


Section 7.11                 Amendments of Material
Contracts.  Amend or
modify, or waive any rights under, any Material Contract (i) if such
amendment, modification or waiver would be adverse to the interests of the
Lenders and (ii) if such amendment, modification or waiver could
reasonably be expected to have a Material Adverse Effect.


 


Section 7.12                 Organization
Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity;
Accounting.


 


(a)         Amend,
modify or change its Organization Documents in a manner adverse to the
interests of the Lenders.


 


 


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(b)        Change
its Fiscal Year;.


 


(c)         Change
its name without providing thirty (30) days prior written notice to the
Administrative Agent or its state of formation or form of organization (except
as permitted by Section 7.04 and so long as the Borrower
Representative provides the Administrative Agent at least thirty (30) days
prior written notice of any such transaction).


 


(d)        Make
or permit any material change in accounting policies or reporting practices,
except as required or permitted by GAAP which the Administrative Agent, after
notice of any such proposed change, does not object to within twenty (20)
Business Days of such notice.


 


Section 7.13                 Ownership of Subsidiaries.  Notwithstanding any other provisions of this
Agreement to the contrary, (i) permit any Person (other than any Borrower
or any Wholly Owned Subsidiary) to own any Equity Interest of any Domestic
Subsidiary, (ii) permit any Subsidiary to issue or have outstanding any
shares of preferred Equity Interest, (iii) create, incur, assume or suffer
to exist any Lien on any Equity Interest of any Subsidiary, except for
Permitted Liens, or (iv) create any Foreign Subsidiaries without obtaining
the prior written consent of the Administrative Agent, such consent not to be
unreasonably withheld or delayed.


 


Section 7.14                 Sale and Leaseback
Transactions.  Enter into
any Sale and Leaseback Transaction.


 


Section 7.15                 Deposit Account Control Agreements; Bank
Accounts.  Open, maintain or otherwise have any account, other than (a) deposit
accounts that are subject to a Deposit Account Control Agreement, and (b) Excluded
Accounts; provided however that in no event shall (I) the aggregate amounts on deposit in any the Excluded
Accounts set forth in letter “(iii)” of the definition of “Excluded Account” as
of any date of determination exceed an amount equal to the amount of payroll
payable to employees of the Loan Parties during the fifteen (15) day period
immediately following such date of determination, and (II) the aggregate amounts on deposit
in any Excluded Account set forth in letter “(ii)” of the definition of “Excluded
Accounts” shall not exceed $25,000 in cash or cash equivalents.


 


Section 7.16                 Capital Expenditures.  Incur Capital Expenditures:


 


(a)         during
Fiscal Year 2008, in excess of $120,000,000;


 


(b)        during
Fiscal Year 2009, in excess of $120,000,000 plus the unused portion of
the Capital Expenditures allowed for Fiscal Year 2008 (for the purposes of this
definition, such unused portion, the “2008 Capex Remainder”);


 


(c)         during
Fiscal Year 2010, in excess of $120,000,000 plus the lesser of (i) $120,000,000
and (ii) the 2008 Capex Remainder plus $120,000,000 minus
the amount of Capital Expenditures incurred by the Loan Parties for the Fiscal
Year 2009;


 


 


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provided, however,
that in no event shall the amount of Capital Expenditures incurred by the
Borrowers in order to be able to render the services permitted under Section 7.02(k) hereof
exceed $5,000,000 for any Fiscal Year (as certified by the Borrower
Representative prior to such Capital Expenditure and on an annual basis).


 


 


ARTICLE VIII



FINANCIAL COVENANTS


 


Section 8.01                 Financial Covenants.  So long as any Lender shall have any
Revolving Commitment or any Delayed Draw Commitment hereunder or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, no Loan Party shall permit:


 


(a)         Net
Total Funded Debt Ratio.  Net Total
Funded Debt Ratio to be greater than 2.50 to 1.0, based on the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b).


 


(b)        Consolidated
Fixed Charges Coverage Ratio. Consolidated Fixed Charges Coverage Ratio to
be less than (in each case based on the Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b)):


 


(i)                  1.0
to 1.0 during each of the first three (3) Fiscal Quarters of the Fiscal
Year 2008,


 


(ii)                 1.05
to 1.0 during the fourth Fiscal Quarter of 2008, and


 


(iii)                1.1
to 1.0 during each remaining Fiscal Quarter thereafter and until the Maturity
Date.


 


(c)         Restricted
Cash. The aggregate amount of cash and Cash Equivalents on deposit in the
Blocked Accounts at any time to be less than $20,000,000 (“Restricted Cash”).


 


ARTICLE IX



EVENTS OF DEFAULT AND REMEDIES


 


Section 9.01                 Events
of Default.  Any of the
following shall constitute an Event of Default:


 


(a)         Non-Payment.  Any Borrower or any other Loan Party fails to
pay when and as required to be paid pursuant to this Agreement or any other
Loan Document, (i) any amount of principal of any Loan or any L/C Exposure
or (ii) within three (3) days after the same becomes due, interest on
any Loan or any L/C Exposure, 


 


 


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any commitment fee, utilization fee or other fee due hereunder, or any
other amount payable hereunder or under any other Loan Document; or


 


(b)        Specific Covenants.


 


(i)            Any
Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Sections 6.01, 6.02 or 6.03 and
such failure continues for ten (10) days; or


 


(ii)           An
Event of Default has occurred under a Loan Document or any Loan Party fails to
perform or observe any term, covenant or agreement contained in any of Sections 6.07,
6.10, 6.11, 6.14, 6.19, Article 7, Article 8
or Article 10 of this Agreement or Sections 6, 7, 8,
9 and 10 of the Security Agreement; or


 


(c)         Other
Defaults.  Any Loan Party fails to
perform or observe any other covenant or agreement (not specified in
subsection (a) or (b) above) contained in this Agreement or in
any other Loan Document on its part to be performed or observed and such
failure continues for thirty (30) days after the earlier of (i) a
Responsible Officer of any Loan Party becoming aware of such failure or (ii) notice
thereof to any Loan Party by the Administrative Agent; or


 


(d)        Representations
and Warranties.  Any representation,
warranty, certification or statement of fact made or deemed made by or on
behalf of any Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith
shall be incorrect or misleading in any material respect when made or deemed
made; or


 


(e)         Cross-Default.  (i) Any Loan Party fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder, or Indebtedness under Hedge Agreements)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than $1,000,000; (ii) any Loan
Party fails to observe or perform any other agreement or condition relating to
any such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (iii) there occurs under any Hedge Agreement an
Early Termination Date (as defined in such Hedge Agreement) resulting from (A) any
event of default under such Hedge Agreement as to which any Loan Party is the
Defaulting 


 


 


104





















 


Party (as defined in such Hedge Agreement) or (B) any Termination
Event (as so defined) under such Hedge Agreement as to which any Loan Party is
an Affected Party (as so defined) and, in either event, the Termination Value
owed by such Loan Party as a result thereof is greater than $1,000,000; or


 


(f)         Insolvency
Proceedings, Etc.  (i) an
involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (A) liquidation, reorganization or other relief in respect
of a Loan Party or either of its debts, or of a substantial part of its assets,
under any federal, state, provincial or foreign bankruptcy, insolvency,
reorganization, adjustment of debt, receivership or similar law now or
hereafter in effect or (B) the appointment of a receiver, receiver and
manager, interim receiver, trustee, custodian, sequestrator, conservator or
similar official for any Loan Party or for a substantial part of its assets,
and, in any such case, such proceeding or petition shall continue undismissed
or unstayed for sixty (60) consecutive days or an order or decree approving or ordering
any of the foregoing shall be entered, or (ii) any Loan Party shall (A) voluntarily
commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state, provincial or foreign
bankruptcy, insolvency, reorganization, adjustment of debt, receivership or
similar law now or hereafter in effect, (B) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (i) above, (C) apply for or consent to
the appointment of a receiver, receiver and manager, interim receiver, trustee,
custodian, sequestrator, conservator or similar official for such Loan Party or
for a substantial part of its assets, (D) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (E) make
a general assignment for the benefit of creditors or (F) take any action
for the purpose of effecting any of the foregoing or any Loan Party otherwise
becomes insolvent; or


 


(g)        Inability
to Pay Debts; Attachment.  (i) Any
Loan Party becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of
attachment or similar process is issued or levied against all or any material
part of the Property of any Loan Party and is not released, vacated or fully
bonded within thirty (30) days after its issue or levy; or (iii) any
writ of execution is issued or levied against all or any material part of the
Property of any Loan Party; or


 


(h)        Judgments.  There is entered against any Loan Party (i) one
or more judgments or orders for the payment of money in an aggregate amount
exceeding $2,000,000 (to the extent not covered by independent third-party
insurance as to which the insurer has acknowledged in writing its obligation to
cover in its entirety), or (ii) any one or more non-monetary judgments
that have, or could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order, or (B) within
thirty (30) days of the rendering of such judgment, such judgment is not
vacated, discharged, satisfied or stayed (by reason of a pending appeal or
otherwise); or


 


 


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(i)          ERISA.  (i) An ERISA Event occurs which has
resulted or could reasonably be expected to result in liability of any Loan
Party under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $500,000, or (ii) any Loan Party
or any ERISA Affiliate fails to pay when due, after the expiration of any
applicable grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of $500,000; or


 


(j)          Invalidity
of Loan Documents.  Any Loan
Document, at any time after its execution and delivery and for any reason other
than as expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect or ceases to give the
Administrative Agent, for the benefit of the Lenders, any material part of the
Liens purported to be created thereby; or any Loan Party or any other Person
contests in any manner the validity or enforceability of any Loan Document; or
any Loan Party denies that it has any or further liability or obligation under
any Loan Document, or purports to revoke, terminate or rescind any Loan
Document; or


 


(k)         Licenses.  One or more of the authorizations, licenses
or permits necessary for any Loan Party’s ability to continue to engage in the
Telecommunications Business or operate its Facilities is cancelled or revoked,
or a Loan Party, or grantor of any such material authorization, license or
permit fails to timely renew such authorization, license or permit prior to the
expiration thereof and such revocation could be reasonably expected to have a
Material Adverse Effect; or


 


(l)          Change
of Control.  There occurs any Change
of Control; or


 


(m)        Blocked
Account.  There shall occur any
rescission, revocation or modification of any instruction or agreement
regarding any Blocked Account or the bank accounts relating thereto, or any
such instruction or agreement is amended or terminated without the written
consent of the Administrative Agent, and in each such case, any amounts remain
on deposit in such Blocked Account or related bank accounts more than five (5) Business
Days following such event; or


 


(n)        Governmental
Approvals.  A state or federal
regulatory agency shall have revoked any Governmental Approvals to the extent
that such revocation could reasonably be expected to have a Material Adverse
Effect, regardless of whether such Governmental Approval was held by or originally
issued for the benefit of a Loan Party.


 


 


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Section 9.02                 Remedies
Upon Event of Default.  If
any Event of Default occurs and is continuing, the Administrative Agent shall,
at the request of, or may, with the consent of, the Required Lenders, take any
or all of the following actions:


 


(a)         declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;


 


(b)        declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document, other than Secured Hedge Agreements, which shall be
governed by their own provisions, to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Loan Parties;


 


(c)         require
that the Borrowers Cash Collateralize the total L/C Exposures (in an amount
equal to 105% the total L/C Exposures as of such date); and


 


(d)        exercise
on behalf of itself and the other Secured Parties, all rights and remedies
available to it and the Lenders under the Loan Documents or applicable law;


 


provided, however,
that upon the occurrence of any Event of Default under Sections 9.01(f) or
9.01(g) or any actual or deemed entry of an order for relief with
respect to any of the Loan Parties under the Bankruptcy Code, the obligation of
each Lender to make Loans and any obligation of the L/C Issuers to make L/C
Credit Extensions shall automatically terminate, the unpaid principal amount of
all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable, and the obligation of the Loan Parties to
Cash Collateralize the total L/C Exposures as aforesaid shall automatically
become effective, in each case without further act of the Administrative Agent
or any Lender.


 


Section 9.03                 Reserved.


 


Section 9.04                 Application of Funds.  Upon the occurrence and during the
continuance of an Event of Default (or after the Loans have otherwise become
due and payable and the L/C Exposures have been required to be Cash
Collateralized as set forth in the proviso to Section 9.02), any
amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:


 


(a)         First,
to payment of that portion of the Obligations constituting fees, indemnities,
funding losses, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;


 


(b)        Second,
to payment of that portion of the Obligations constituting fees (other than
Unused Commitment Fees), indemnities and other amounts (other than principal
and interest) payable to the Lenders (including Attorney Costs and amounts 


 


 


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payable under Article III), ratably among them in
proportion to the amounts described in this clause (b) payable to
them;


 


(c)         Third,
to payment of that portion of the Obligations constituting accrued and unpaid
interest and Unused Commitment Fees on the Loans and Unreimbursed L/C Amounts
and fees and scheduled periodic payments, and any interest accrued thereon, due
under any Secured Hedge Agreement, ratably among the Secured Parties in
proportion to the respective amounts described in this clause (c) held
by them;


 


(d)        Fourth,
to payment of that portion of the Obligations constituting unpaid principal of
the Loans and Unreimbursed L/C Amounts and breakage, termination and any other
payments, and any interest accrued thereon, due under any Secured Hedge
Agreement, to Cash Collateralize that portion of L/C Exposures comprised of the
aggregate undrawn amount of Letters of Credit, ratably among the Secured
Parties in proportion to the respective amounts described in this clause (d) held
by them; and


 


(e)         Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrowers or as otherwise required by Law.


 


Subject
to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause (d) above
shall be applied to satisfy drawings under such Letters of Credit if and as
they occur.  If any amount remains on
deposit as cash collateral after all Letters of Credit have either been fully
drawn or expired, such remaining amount shall be applied to other Obligations,
if any, in the order set forth above.


 


ARTICLE X



GUARANTY


 


Section 10.01               The Guaranty.  Each Guarantor hereby guarantees to each
Secured Party, each Affiliate of a Lender that enters into a Secured Hedge
Agreement, and the Administrative Agent as hereinafter provided, as primary obligor
and not as surety, the prompt payment and performance of the Obligations in
full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof.  Each Guarantor hereby further agrees that if
any of the Obligations are not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise), each
Guarantor will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration or otherwise) in
accordance with the terms of such extension or renewal (collectively, the “Guaranteed
Obligations”).


 


Subject
to Section 10.06 and the last sentence of this Section 10.01
below, the Guarantors hereby jointly and severally agree, in furtherance of the
foregoing and not in limitation of any other right which the Administrative
Agent or any Secured Party may have at law or in equity 


 


 


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against any Guarantor by virtue hereof,
that upon the failure of any of the Guaranteed Obligations to be paid when and
as the same shall become due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise (including amounts
that would become due but for the operation of the automatic stay under Section 362(a) of
the Bankruptcy Code), the Guarantors will, upon demand pay, or cause to be
paid, in cash, to the Administrative Agent for the ratable benefit of Secured
Parties, an amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on
such Guaranteed Obligations (including interest which, but for any Borrower’s
becoming the subject of a case under the Bankruptcy Code, would have accrued on
such Guaranteed Obligations, whether or not a claim is allowed against any
Borrower for such interest in the related bankruptcy case) and all other
Guaranteed Obligations then owed to the Lenders and Secured Parties as
aforesaid.


 


Notwithstanding
any provision to the contrary contained herein or in any other of the Loan
Documents, the Guaranteed Obligations of each Guarantor under this Agreement
and the other Loan Documents shall be limited to an aggregate amount equal to
the largest amount that would not render such Guaranteed Obligations subject to
avoidance under the Debtor Relief Laws.


 


Section 10.02               Obligations Unconditional.  The Guaranteed Obligations of each Guarantor
under Section 10.01 are joint and several and absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Loan Documents, Secured Hedge Agreements, or any
other agreement or instrument referred to therein, or any substitution,
release, impairment or exchange of any other guarantee of or security for any
of the Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Section 10.02 that the obligations of
each Guarantor hereunder shall be absolute and unconditional under any and all
circumstances.  Each Guarantor agrees
that such Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrowers or any other Guarantor for
amounts paid under this Article X until the Termination Date.  Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder, which shall remain joint and several and
absolute and unconditional as described above:


 


(a)         at
any time or from time to time, without notice to any Guarantor, the time for
any performance of or compliance with any of the Obligations shall be extended,
or such performance or compliance shall be waived;


 


(b)        any
of the acts mentioned in any of the provisions of any of the Loan Documents,
any Secured Hedge Agreement or any other agreement or instrument referred to in
the Loan Documents or such Secured Hedge Agreements shall be done or omitted;


 


(c)         the
maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any 


 


 


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right under any of the Loan Documents, any Secured Hedge Agreement or
any other agreement or instrument referred to in the Loan Documents or such
Secured Hedge Agreements shall be waived or any other guarantee of any of the
Obligations or any security therefor shall be released, impaired or exchanged
in whole or in part or otherwise dealt with;


 


(d)        any
Lien granted to, or in favor of, the Administrative Agent or any Secured Party
or Secured Parties as security for any of the Obligations shall fail to attach
or be perfected;


 


(e)         any
of the Obligations shall be determined to be void or voidable (including for
the benefit of any creditor of any Guarantor) or shall be subordinated to the
claims of any Person (including any creditor of any Guarantor); or


 


(f)         any
other action occurs or fails to occur which might constitute a surety defense.


 


Section 10.03               Reinstatement.  The Guaranteed Obligations of any Guarantor
under this Article X shall be automatically reinstated if and to
the extent that for any reason any payment by or on behalf of any Person in
respect of the Obligations is rescinded or must be otherwise restored by any
holder of any of the Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise, and each Guarantor agrees that it
will indemnify the Administrative Agent and each Secured Party on demand for
all reasonable costs and expenses (including fees and expenses of counsel)
incurred by the Administrative Agent or such Secured Party in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.


 


Section 10.04               Waivers.  Each Guarantor hereby waives, to the fullest
extent permitted by Law, for the benefit of the Administrative Agent and
Secured Parties:  (a) any right to
require the Administrative Agent or any Lenders, as a condition of payment or
performance by such Guarantor, to (i) proceed against any Borrower, any
other guarantor (including any other Guarantor) of the Guaranteed Obligations
or any other Person, (ii) proceed against or exhaust any security held
from any Borrower, any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any deposit account or credit on the
books of the Administrative Agent and Secured Parties in favor of any Borrower
or any other Person, or (iv) pursue any other remedy in the power of the
Administrative Agent and the Secured Parties whatsoever; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or
other defense of any Borrower or any other Guarantor including any defense
based on or arising out of the lack of validity or the unenforceability of the
Guaranteed Obligations or any agreement or instrument relating thereto or by
reason of the cessation of the liability of any Borrower or any other Guarantor
from any cause other than payment in full of the Guaranteed Obligations; (c) any
defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal or any law, rule, regulation, or
order of any jurisdiction affecting any


 


 


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term of the Guaranteed Obligations; (d) any
defense based upon the Administrative Agent’s or any Secured Party’s errors or
omissions in the administration of the Guaranteed Obligations; (e) (i) any
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms hereof and any legal or equitable discharge of such
Guarantor’s obligations hereunder, (ii) the benefit of any statute of
limitations affecting such Guarantor’s liability hereunder or the enforcement
hereof, (iii) any rights to set offs, recoupments and counterclaims, and (iv) promptness,
diligence and any requirement that the Administrative Agent and the Secured
Parties protect, secure, perfect or insure any security interest or lien or any
property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance hereof, notices of default hereunder, any Secured Hedge
Agreement or any agreement or instrument related thereto, notices of any
renewal, extension or modification of the Guaranteed Obligations or any
agreement related thereto, notices of any extension of credit to any Borrower
and notices of any of the matters referred to in Section 10.02 and
any right to consent to any thereof; and (g) any defenses or benefits that
may be derived from or afforded by law which limit the liability of or
exonerate guarantors or sureties, or which may conflict with the terms
hereof.  Each Guarantor agrees that such
Guarantor shall have no right of recourse to security for the Obligations,
except through the exercise of rights of subrogation pursuant to Section 10.02.


 


Section 10.05               Remedies.  Each Guarantor agrees that, to the fullest
extent permitted by law, as between such Guarantor, on the one hand, and the
Administrative Agent and the Secured Parties, on the other hand, the
Obligations may be declared to be forthwith due and payable as provided in Section 9.02
(and/or shall be deemed to have become automatically due and payable in the
circumstances provided in said Section 9.02) for purposes of Section 10.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing the Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of such declaration
(or the Obligations being deemed to have become automatically due and payable),
the Obligations (whether or not due and payable by any other Person) shall
forthwith become due and payable by each Guarantor for purposes of Section 10.01.  Each Guarantor acknowledges and agrees that
its Guaranteed Obligations hereunder are secured in accordance with the terms
of the Collateral Documents and that the Secured Parties may exercise their
remedies thereunder in accordance with the terms thereof.


 


Section 10.06               Contribution by Guarantors.  All Guarantors desire to allocate among
themselves (collectively, the “Contributing Guarantors”), in a fair and
equitable manner, their obligations arising under this Guaranty.  Accordingly, in the event any payment or
distribution is made on any date by a Guarantor (a “Funding Guarantor”)
under this Guaranty such that its Aggregate Payments exceeds its Fair Share as
of such date, such Funding Guarantor shall be entitled to a contribution from
each of the other Contributing Guarantors in an amount sufficient to cause each
Contributing Guarantor’s Aggregate Payments to equal its Fair Share as of such
date.  “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount
equal to (a) the ratio of (i) the Fair Share Contribution Amount with
respect to such Contributing Guarantor to (ii) the aggregate of the Fair
Share Contribution Amounts with respect to all Contributing Guarantors multiplied
by (b) the aggregate amount paid or distributed on or before such date by
all Funding Guarantors under this Guaranty in respect of the obligations
Guaranteed.  “Fair Share Contribution
Amount” means, with respect to a 


 


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Contributing Guarantor as of any date of
determination, the maximum aggregate amount of the obligations of such
Contributing Guarantor under this Guaranty that would not render its
obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of the Bankruptcy Code or any
comparable applicable provisions of state law; provided, solely for
purposes of calculating the “Fair Share Contribution Amount” with
respect to any Contributing Guarantor for purposes of this Section 10.06,
any assets or liabilities of such Contributing Guarantor arising by virtue of
any rights to subrogation, reimbursement or indemnification or any rights to or
obligations of contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. 
“Aggregate Payments” means, with respect to a Contributing
Guarantor as of any date of determination, an amount equal to (1) the
aggregate amount of all payments and distributions made on or before such date
by such Contributing Guarantor in respect of this Guaranty (including in
respect of this Section 10.06), minus (2) the aggregate
amount of all payments received on or before such date by such Contributing
Guarantor from the other Contributing Guarantors as contributions under this Section 10.06.  The amounts payable as contributions
hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor.  The allocation among Contributing Guarantors
of their obligations as set forth in this Section 10.06 shall not
be construed in any way to limit the liability of any Contributing Guarantor
hereunder.  Each Guarantor is a third
party beneficiary to the contribution agreement set forth in this Section 10.06
and a right to receive any Fair Share Contribution Amount shall be deemed an
asset of the Guarantor entitled to such amount.


 


Section 10.07               Guarantee of Payment;
Continuing Guarantee.  The
guarantee in this Article X is an absolute and unconditional
guaranty of payment and not of collection, is a continuing and irrevocable
guarantee, and shall apply to all Obligations whenever arising.


 


Section 10.08               Subordination of Other
Obligations.  Any
Indebtedness of any Borrower or any Guarantor now or hereafter held by any
Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such indebtedness collected or
received by the Obligee Guarantor (other than any such amounts which are
expressly permitted by the terms of this Agreement to be paid to such Obligee
Guarantor) shall be held in trust for the Administrative Agent for its benefit
and the benefit of the Secured Parties and shall forthwith be paid over to the
Administrative Agent for its benefit and the benefit of the Secured Parties to
be credited and applied against the Guaranteed Obligations but without
affecting, impairing or limiting in any manner the liability of the Obligee
Guarantor under any other provision hereof.


 


ARTICLE XI


 


THE ADMINISTRATIVE AGENT


 


Section 11.01               Appointment and Authorization
of Administrative Agent.


 


(a)         Each
Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such 


 


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powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document, together with such powers
as are reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere herein
or in any other Loan Document, the Administrative Agent shall not have any
duties or responsibilities, except those expressly set forth herein, nor shall
the Administrative Agent have or be deemed to have any fiduciary relationship
with any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.  Without limiting
the generality of the foregoing sentence, the use of the term “agent”
herein and in the other Loan Documents with reference to the Administrative Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


(b)        Each
L/C Issuer shall act on behalf of the Lenders with respect to any Letters of
Credit issued by it and the documents associated therewith, and each L/C Issuer
shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article XI with respect to any acts
taken or omissions suffered by such L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and
agreements for letters of credit pertaining to such Letters of Credit as fully
as if the term “Administrative Agent” as used in this Article XI
and in the definition of “Agent-Related Person” included such L/C Issuer with
respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuers.


 


Section 11.02               Delegation of Duties.  The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through its,
or its Affiliates’, agents, employees or attorneys-in-fact and shall be
entitled to obtain and rely upon the advice of counsel and other consultants or
experts concerning all matters pertaining to such duties.  The Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct (as
finally determined in a non-appealable decision of a court of competent
jurisdiction).


 


Section 11.03               Liability of Administrative
Agent.  No
Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein, as finally determined in a non-appealable decision of a court
of competent jurisdiction), or (b) be responsible in any manner to any
Lender or participant for any recital, statement, representation or warranty
made by any Loan Party or any officer thereof, contained herein or in any other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Loan Party or
any other party to any Loan Document to perform its obligations hereunder or 


 


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thereunder. 
No Agent-Related Person shall be under any obligation to any Lender or
participant to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the properties, books or records of any Loan
Party or any Affiliate thereof.


 


Section 11.04               Reliance by Administrative Agent.


 


(a)           The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, communication,
signature, resolution, representation, notice, consent, certificate, affidavit,
letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Loan Party), independent accountants and other experts selected by the
Administrative Agent.  The Administrative
Agent shall be fully justified in failing or refusing to take any action under
any Loan Document unless it shall first receive such advice or concurrence of
the Required Lenders as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.  As
between the Administrative Agent and the Lenders, the Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders.


 


(b)           For purposes of determining compliance with the conditions
specified in Sections 4.01 and 4.02, each Lender that has
signed this Agreement (or an addendum to this Agreement or a Joinder Agreement)
shall be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter required hereunder to be consented to or
approved by or acceptable or satisfactory to a Lender.


 


Section 11.05               Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default and/or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or any Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of
default.”  The Administrative Agent will
notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such
action with respect to such Default and/or Event of Default as may be directed
by the Required Lenders in accordance with Article IX; provided,
however, that unless and until the Administrative Agent has received any
such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default and/or Event of Default as it shall deem advisable or in the best interest
of the Lenders.


 


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Section 11.06               Credit Decision; Disclosure of
Information by Administrative Agent.  Each Lender acknowledges that no
Agent-Related Person has made any representation or warranty to it, and that no
act by the Administrative Agent or any Agent-Related Person hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. 
Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan
Parties and their respective Domestic Subsidiaries, and all applicable bank or
other regulatory Laws relating to the transactions contemplated hereby, and
made its own decision to enter into this Agreement and to extend credit to the
Borrowers and the other Loan Parties hereunder. 
Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Borrowers and the
other Loan Parties.  Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent herein, no Agent-Related Person shall have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any of the Loan Parties or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.


 


Section 11.07               Indemnification of
Agent-Related Persons. 
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (without limiting
the obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related Person’s
own gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Required Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section 11.07. 
Without limitation of the foregoing, each Lender shall reimburse the
Administrative Agent or any Agent-Related Person upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Administrative Agent or such other Agent-Related Person in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations,
Proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that the
Administrative Agent or such other Agent-Related Person is not reimbursed for
such expenses by or on behalf of the Borrowers within fifteen (15) days of such
Agent-Related Person’s request to the Borrower 


 


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Representative thereof.  The undertaking in this Section 11.07
shall survive the Termination Date and the resignation of the Administrative Agent.


 


Section 11.08               Administrative Agent in its
Individual Capacity. 
Societe Generale and its Affiliates and each other Agent and its
Affiliates, may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity capital in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Loan Parties and their respective Affiliates as though Societe
Generale were not the Administrative Agent or an L/C Issuer hereunder and
without notice to or consent of the Lenders. 
The Lenders acknowledge that, pursuant to such activities, Societe
Generale or its Affiliates may receive information regarding any Loan Party or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or such Affiliate) and acknowledge that
the Administrative Agent shall be under no obligation to provide such
information to the Lenders.  With respect
to its Loans, Societe Generale shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or an L/C Issuer, and the terms “Lender”
and “Lenders” include Societe Generale in its individual capacity.


 


Section 11.09               Successor Administrative Agent.  The Administrative Agent may resign as the
Administrative Agent upon thirty (30) days’ notice to the Lenders and the
Borrower Representative; provided that any such resignation by Societe
Generale shall also constitute its resignation as the L/C Issuer.  If the Administrative Agent resigns under
this Agreement, the Required Lenders shall appoint from among the Lenders (or a
financial institution or an Eligible Assignee, acceptable to the Required
Lenders) a successor administrative agent for the Lenders, provided that
such successor Administrative Agent shall be a bank or other financial
institution whose short term commercial paper rating from S&P is at least
A1 or the equivalent thereof or from Moody’s is at least P1 or the equivalent
thereof at the time of such appointment. 
If no successor administrative agent is appointed prior to the effective
date of the resignation of the Administrative Agent, the Administrative Agent
may appoint, after consulting with the Lenders, a successor administrative
agent from among the Lenders (if such Lender agrees to act as Administrative
Agent); provided, that unless an Event of Default has occurred and is
continuing, the consent of the Borrower Representative to such successor
administrative agent shall be required (such consent not to be unreasonably
withheld or delayed).  Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent (and L/C Issuer,
if applicable) and the respective terms “Administrative Agent” and (and “L/C
Issuer”, if applicable) means such successor administrative agent and Letter of
Credit issuer, and the retiring Administrative Agent’s appointment, powers and
duties in such capacities shall be terminated without any other further act or
deed on its behalf.  After any retiring
Administrative Agent’s resignation hereunder as the Administrative Agent, the
provisions of this Article XI and Sections Section 12.04
and 12.05 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Administrative Agent under this
Agreement.  If no successor
administrative agent has accepted appointment as the Administrative Agent by
the date thirty (30) days following a retiring Administrative Agent’s
notice of resignation, the retiring Administrative Agent’s resignation shall
nevertheless thereupon become effective and the Required Lenders shall perform
all of the duties of the Administrative Agent 


 


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hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above.


 


Section 11.10               Administrative Agent May File
Proofs of Claim.  In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Exposure shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Loan Parties)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


 


(a)         to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 2.09 and 12.04) allowed in such judicial
proceeding; and


 


(b)        to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections 2.09
and 12.04.


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.


 


Section 11.11               Collateral and Guaranty
Matters.  The Lenders
irrevocably authorize the Administrative Agent, at its option and in its
discretion, to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document (i) upon the Termination
Date, (ii) that is transferred or to be transferred as part of or in
connection with any Disposition permitted hereunder or under any other Loan
Document or any Involuntary Disposition, or (iii) as approved in accordance
with Section 11.01.  Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of Property, pursuant to
this Section 11.11.


 


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Section 11.12               Other Agents; Managers.  None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as
a “documentation agent” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. 
Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.


 


Section 11.13               Cooperation of Loan Parties.  If necessary, each Loan Party agrees to (i) execute
any documents (including new Revolving Notes, Delayed Draw Notes and/or Term
Notes) reasonably required to effectuate and acknowledge each assignment of a
Commitment to an assignee in accordance with Section 12.07, (ii) make
the Loan Parties’ management available to meet with the Administrative Agent
and prospective participants and assignees of Commitments and (iii) assist
the Administrative Agent or the Lenders in the preparation of information
relating to the financial affairs of the Loan Parties as any prospective
participant or assignee of a Commitment reasonably may request.


 


Section 11.14               Cooperation of Lenders.  Each Lender shall (a) promptly notify
the other Lenders and the Administrative Agent of any Event of Default known to
such Lender under this Agreement and not reasonably believed to have been
previously disclosed to the other Lenders; (b) provide the other Lenders
and the Administrative Agent with such information and documentation as such
other Lenders or Agent shall reasonably request in the performance of their
respective duties hereunder, including, all information relative to the
outstanding balance of principal, interest and other sums owed to such Lender
by the Borrowers but excluding internally generated reports and analyses and
other customarily confidential materials; and (c) cooperate with the
Administrative Agent with respect to any and all collections and/or foreclosure
procedures at any time commenced against the Borrowers or otherwise in respect
of the Collateral by the Administrative Agent in the name and on behalf of the
Lenders.


 


Section 11.15               One Lender Sufficient.  This Agreement shall remain in full force and
effect, and all agency provisions shall be and remain effective,
notwithstanding the fact that there may from time to time be only one Lender
hereunder which Lender may be the same Person who is then serving as the
Administrative Agent hereunder.


 


ARTICLE XII


 


MISCELLANEOUS


 


Section 12.01               Amendments, Etc.  No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
any Borrower or any other Loan Party therefrom, shall be effective unless in writing
executed by the Required Lenders and the applicable Borrower or the applicable
Loan Party, as the case may be, and acknowledged by the Administrative Agent,
and each such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it is delivered; provided,
however, that no such amendment, waiver or consent shall:


 


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(a)         extend
or increase the Revolving Commitment, Delayed Draw Commitment or Term Loan Commitment
of any Lender (or reinstate any Revolving Commitment, Delayed Draw Commitment
or Term Loan Commitment terminated or reduced pursuant to this Agreement)
without the written consent of such Lender (it being understood and agreed that
a waiver or amendment of any condition precedent set forth in Section 4.02
or of any Default or Event of Default or a mandatory reduction in Revolving
Commitments shall not be considered an extension or increase in Revolving
Commitments, Delayed Draw Commitments or Term Loan Commitments of any Lender);


 


(b)        postpone
any date fixed by this Agreement or any other Loan Document for any payment of
principal (excluding mandatory prepayments), interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any other Loan Document
without the written consent of each Lender directly affected thereby;


 


(c)         reduce
or forgive the principal of, or the rate of interest specified herein on, any
Loan or Unreimbursed L/C Amount, or any fees or other amounts payable hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary to amend the definition of “Default
Rate” or to waive any obligation of the Borrowers to pay interest at the
Default Rate and no change to the definition of “Net Total Funded Debt Ratio”
or in the component definitions thereto shall be considered to be a reduction
or forgiveness of interest;


 


(d)        change
Section 2.12(c), Section 2.13 or Section 9.04
or the definition of “Pro Rata Share” in a manner that would alter the pro rata
sharing or application of payments required thereby without the written consent
of each Lender directly affected thereby;


 


(e)         change
any provision of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder without the written consent of
each Lender directly affected thereby;


 


(f)         except
in connection with a Disposition permitted under Section 7.05 as in
existence and in effect on the date hereof, release all or substantially all of
the Collateral without the written consent of each Lender directly affected
thereby; or


 


(g)        release
any Loan Party (except in connection with a merger or consolidation permitted
under Section 7.04 or a Disposition permitted under Section 7.05
as each such Section is in existence and in effect on the date hereof)
from its obligations under the Loan Documents.


 


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in each case, without the
written consent of each Lender directly affected thereby; and, provided  further,
that (i) no amendment, waiver or consent shall, unless in writing and
executed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document; (ii) no amendment, waiver or consent shall,
unless in writing and executed by the L/C Issuers (who are also Agents or
Lenders hereunder) in addition to the Lenders required above, affect the rights
or duties of any L/C Issuers under this Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by it; (iii) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto; (iv) any Loan Document
consisting of a Secured Hedge Agreement may be amended by written consent of
only the parties thereto, (v) each Lender must approve (A) any
amendment to the Lender voting percentages set forth in the Loan Documents and (B) the
release of any Guarantor hereunder and (vi) any amendment or waiver
changing the priority of payment of or security for any Obligation under a
Secured Hedge Agreement (other than as expressly set forth herein) shall also
require the consent of the Secured Hedge Provider affected.


 


Notwithstanding anything to
the contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Revolving Commitment or Delayed Draw Commitment of such Lender may not be
increased or extended without the consent of such Lender.


 


Notwithstanding the fact
that the consent of all the Lenders is required in certain circumstances as set
forth above, (x) each Lender is entitled to vote as such Lender sees fit
on any bankruptcy reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Bankruptcy
Code supersedes the unanimous consent provisions set forth herein and (y) the
Required Lenders shall determine whether or not to allow a Loan Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding and such
determination shall be binding on all of the Lenders.


 


Section 12.02               Notices and Other
Communications; Facsimile Copies.


 


(a)         General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(messages sent by electronic mail or other electronic transmission (other than
by facsimile) shall not constitute a writing, however any signature on a
document or other writing that is transmitted by electronic mail or facsimile
machine shall constitute a valid signature for the purposes hereof).  All such written notices shall be mailed,
faxed or delivered to the applicable address, facsimile number or (subject to
subsection (c) below) electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:


 


(i)            if
to the Loan Parties, the Borrower Representative, the Administrative Agent or
the L/C Issuer, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 12.02 or to
such other address, facsimile number, electronic mail address or telephone
number as


 


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shall be designated by such party in a notice to the Borrower
Representative and Administrative Agent; and


 


(ii)           if
to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such
other address, facsimile number, electronic mail address or telephone number as
shall be designated by such party in a notice to the Borrower Representative
and the Administrative Agent.


 


All
such notices and other communications shall be deemed to be delivered or made
upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed
for by or on behalf of the relevant party hereto; (B) if delivered by
mail, four (4) Business Days after deposit in the mails, postage prepaid; (C) if
delivered by facsimile, when sent and receipt has been confirmed by telephone;
and (D) if delivered by electronic mail (which form of delivery is subject
to the provisions of subsection (c) below), when delivered; provided,
however, that notices and other communications to the Administrative
Agent pursuant to Article II shall not be effective until actually
received by such Person.  In no event
shall a voicemail message be effective as a notice, communication or
confirmation hereunder.


 


(b)        Effectiveness
of Facsimile Documents and Signatures. 
Loan Documents may be transmitted by facsimile and executed by delivery
of a facsimile.  The effectiveness of any
such documents and signatures shall, subject to applicable Law, have the same
force and effect as manually signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders.  The Administrative Agent may also require
that any such documents and signatures be confirmed by a manually signed
original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.


 


(c)         Limited
Use of Electronic Mail.  Electronic
mail and internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 6.01,  Section 6.02 and Section 6.03,
and to distribute Loan Documents for execution by the parties thereto, and
shall not constitute notice for any other purpose.


 


(d)        Reliance
by Administrative Agent and Lenders. 
The Administrative Agent and the Lenders shall be entitled to rely and
act upon any notices (including telephonic Loan Notices) purportedly delivered
by or on behalf of any Loan Party or the Borrower Representative even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Borrowers shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice purportedly
delivered by or on behalf of any Loan Party or the Borrower Representative. All
telephonic notices to and other 


 


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communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording.


 


(e)         Deemed
Consent.  If a Lender’s consent to a
waiver, amendment or other course of action is required under the terms of this
Agreement and such Lender does not respond to any request by the Administrative
Agent for such consent within ten (10) Business Days after the date of the
receipt by the Lender of such request, such failure to respond shall be deemed
a consent to the requested course of action.


 


Section 12.03               No Waiver; Cumulative Remedies.  No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


Section 12.04               Attorney Costs, Expenses and
Taxes.  The
Borrowers agree (a) to pay or reimburse the Administrative Agent for all
reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the
other Loan Documents and any amendment, waiver, consent or other modification
of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including
all Attorney Costs and reasonable out-of-pocket costs and expenses in
connection with the use of IntraLinks, SyndTrak, StuckyNet, or other similar
information transmission systems in connection with this Agreement, and (b) to
pay or reimburse the Administrative Agent and each Lender for all reasonable
out-of-pocket costs and expenses incurred in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Loan Documents (including all such costs and expenses
incurred during any “workout” or restructuring in respect of the Obligations
and during any legal proceeding, including any proceeding under any Debtor
Relief Law), including all Attorney Costs and fees, costs and expenses incurred
by the Administrative Agent pursuant to the Collateral Documents.  The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges
and fees and taxes related thereto, and other out-of-pocket expenses and the
cost of independent public accountants, consultants and other outside experts
retained by the Administrative Agent or any Lender.  All amounts due under this Section 12.04
shall be deemed part of the Obligations when incurred and shall be payable
within ten (10) Business Days after demand therefor.  The agreements in this Section 12.04
shall survive the Termination Date.


 


Section 12.05               Indemnification by the
Borrowers.  Whether or
not the transactions contemplated hereby are consummated, the Borrowers agree
jointly and severally to indemnify and hold harmless each Agent-Related Person,
each Lender, the L/C Issuer, each Secured Party and the respective Affiliates
of all such Persons and their representatives, directors, officers, employees,
counsel, trustees, advisors, agents and attorneys-in-fact of all the foregoing
persons (collectively, the “Indemnitees”) from and against any and all
liabilities, obligations, losses, 


 


 


122





















 


damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses and disbursements (including Attorney Costs
and other costs of investigation or defense, including those incurred upon any
appeal) of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against any such Indemnitee in any way relating to or
arising out of or in connection with (a) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated thereby,
(b) any Commitment, Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by any L/C 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), (c) any actual or alleged presence or release of
Hazardous Materials on or from any property currently or formerly owned or
operated by any Borrower, any Subsidiary or any other Loan Party, or any
Environmental Liability related in any way to any Borrower, any Subsidiary or
any other Loan Party, (d) insurance premiums owed by
any Loan Party and matters arising from warranties or representations made by
any Borrower to insurance underwriters, or (e) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”); provided, however, that such indemnity shall
not, as to any Indemnitee, be available to the extent that such liabilities,
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of an Indemnitee or breach by an
Indemnitee of any Loan Document (or such Indemnitee’s officers, directors,
employees or agents) as determined by a final and non-appealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. 
In connection with any claim, litigation, investigation or proceeding
for which an Indemnitee seeks indemnification, such Indemnitee shall be
entitled to select its own legal counsel. 
No Indemnitee shall be liable for any damages arising from the use by
others of any information or other materials obtained through the internet,
IntraLinks or other similar information transmission systems in connection with
this Agreement, nor shall any Indemnitee have any liability for any punitive,
special, indirect or consequential damages relating to this Agreement or any
other Loan Document or arising out of its activities in connection herewith or
therewith (whether arising or occurring before or after the Closing Date).  All amounts due under this Section 12.05
shall be payable within ten (10) Business Days after demand therefor.  The agreements in this Section 12.05
shall survive the resignation of the Administrative Agent, the replacement of
any Lender, and the Termination Date.  To
the extent that the indemnification set forth in this Section 12.05
may be unenforceable, each Loan Party shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable Law to the payment
and satisfaction of all such indemnified liabilities incurred by the
Indemnitees or any of them.  Without
limiting the generality of any provision of this Section, to the fullest extent
permitted by law, each Loan Party hereby waives all rights for contribution or
any other rights of recovery with respect to liabilities, losses, damages,
costs and expenses arising under or relating to Environmental Laws that it
might have 


 


 


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by statute or otherwise against any
Indemnitee, except to the extent that such items are determined by a final and
non-appealable decision of a court of competent jurisdiction to have resulted
solely from the gross negligence or willful misconduct of such Indemnitee.


 


Section 12.06               Payments Set Aside.  To the extent that any payment by or on
behalf of any Loan Party is made to the Administrative Agent or any Lender, or
the Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate
per annum equal to the Federal Funds Rate from time to time in effect.


 


Section 12.07               Successors
and Assigns.


 


(a)         Successors
and Assigns Generally.  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 neither any Borrower nor any other Loan Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section or (iii) by way of pledge or
assignment of a security interest subject to the restrictions of subsection (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 subsection (d) of
this Section and, to the extent expressly contemplated hereby, the
Indemnitees 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)        Assignments
by Lenders.  Any Lender may at any
time assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:


 


 


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(i)            Minimum Amounts.


 


(A)               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, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and


 


(B)                in
any case not described in subsection (b)(i)(A) of this Section, 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 Loans 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 $5,000,000 (no less than $1,000,000 in
the case of Term Loans), unless each of the Administrative Agent and, so long
as no Event of Default has occurred and is continuing, the Borrower
Representative otherwise consents (each such consent not to be unreasonably
withheld or delayed).


 


(ii)           Proportionate
Amounts.  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
prohibit any Lender from assigning all or such portions of its rights and
obligations among separate tranches on a non-pro rata basis.


 


(iii)          Required Consents. 
No consent shall be required for any assignment except to the extent
required by subsection (b)(i)(B) of this Section and, in addition:


 


(A)               the
consent of the Borrower Representative (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided,
that if consent is required under this clause the Borrower Representative shall
have the right to withhold such  consent,
in its sole discretion, if such assignment is to a Person that is not an
Eligible Assignee;


 


(B)                the
consent of the Administrative Agent shall be required for assignments in
respect of (i) a Revolving Commitment or Delayed Draw Commitment if such
assignment is to a Person that is not a Lender with a Commitment in respect of
such facility, an Affiliate of such Lender or an Approved Fund with respect to
such Lender or (ii) the Term Loan to a Person who is not a Lender, an
Affiliate of a Lender or an Approved Fund; and


 


 


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(C)                the
consent of the L/C Issuer shall be required for any assignment that increases
the obligation of the assignee to participate in exposure under one or more
Letters of Credit (whether or not then outstanding).


 


(iv)          Assignment
and Assumption.  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 assignee, if it is not a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire.


 


(v)           No
Assignment to any Loan Party.  No
such assignment shall be made to any Loan Party or its Affiliates or Subsidiaries,
but no Approved Fund related to a Lender shall be deemed an Affiliate or
Subsidiary of a Loan Party for this purpose.


 


(vi)          No
Assignment to Natural Persons.  No
such assignment shall be made to a natural person.


 


Subject to acceptance and recording thereof
by the Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption,
the 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
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 Section 3.01,
Section 3.04, Section 3.05, Section 10.04
and Section 10.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment. 
Upon request, the Borrowers (at their expense) shall execute and deliver
a Note to the assignee Lender.  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection 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 subsection (d) of this Section.


 


(c)         Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers (the “Registrar”), shall
maintain at the Administrative Agent’s Office in the United States a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, the principal amounts of the Loans owing to, and the L/C
Exposure held by, each Lender pursuant to the terms hereof from time to time
(the “Register”).  No assignment
or transfer of a Loan or a Commitment (other than a pledge as described in
paragraph (f) below) shall be effective unless and until registered in the
Register.  The entries in the Register
shall be conclusive, and the Borrowers, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for 


 


 


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all purposes of this Agreement, notwithstanding notice to the contrary,
provided that, failure to make any such recordation, or any error in
such recordation, shall not affect any Lender’s Commitments or any Borrower’s
or other Loan Party’s Obligations in respect of any Loan or Letter of
Credit.  The Register shall be available
for inspection by any Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice. 
Each Borrower hereby designates the entity serving as the Administrative
Agent to serve as such Borrower’s agent solely for purposes of maintaining the
Register as provided in this Section, and each Borrower hereby agrees that the
entity serving as Registrar and its Affiliates, and their respective officers,
directors, employees and agents shall constitute Indemnitees under Section 12.05.  At the request of the registered Lender, the
Registrar shall note a collateral assignment of a Loan on the Register and, provided
that the Registrar has received the name and address of such collateral
assignee, the Registrar (i) shall not permit any further transfers of the
Loan on the Register absent receipt of written consent to such transfers from
such collateral assignee and (ii) shall record the transfer of the Loan on
the Register to such collateral assignee (or such collateral assignee’s
designee, nominee or assignee) upon written request by such collateral
assignee.


 


(d)        Participations.  Any Lender may at any time, without the
consent of, or notice to, the Borrower Representative, any Loan Party, the
Administrative Agent or the L/C Issuer, sell participations to any Person
(other than a natural person or any Loan Party or any of its 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 (including such Lender’s L/C
Exposure)); 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) each Borrower, each other Loan Party, the Administrative Agent
and the Lenders and the L/C Issuer 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 this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; 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 of Section 12.01 that affects such
Participant.  Subject to subsection (e) of
this Section, each Borrower and each other Loan Party agrees that each
Participant shall be entitled to the benefits of Sections 3.01, Section 3.04
and Section 3.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this
Section.  To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 12.09
as though it were a Lender, provided such Participant agrees to be
subject to Section 2.13 as though it were a Lender.


 


(e)         Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or Section 3.04 than the 


 


 


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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 Representative’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 3.01 unless the Borrower Representative is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 3.01 as
though it were a Lender.


 


(f)         Certain
Pledges.  Any Lender may at any time
pledge or assign a security interest in all or any portion of its rights under
this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank and any pledge to a
trustee as security for the benefit of the noteholders and other
securityholders or creditors of a Lender; 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 until
the provisions of this Section regarding assignment are satisfied with
respect to such pledge or assignee of such Lender.


 


(g)        Lender
Securitization.  In addition to any
other assignment permitted pursuant to this Section, the Loan Parties hereby
acknowledge that (x) the Lenders, their Affiliates and Approved Funds (the
“Lender Parties”) may sell or securitize the Loans (a “Lender
Securitization”) through the pledge of the Loans as collateral security for
loans to a Lender Party or the assignment or issuance of direct or indirect
interests in the Loans (such as, for instance, collateralized loan obligations),
and (y) such Lender Securitization may be rated by a Rating Agency.  The Loan Parties shall reasonably cooperate
with the Lender Parties to effect the Lender Securitization including by (a) amending
this Agreement and the other Loan Documents, and executing such additional
documents, as reasonably requested by the Lenders in connection with the Lender
Securitization; provided that (i) any such amendment or additional
documentation does not impose material additional costs on the Borrowers and (ii) any
such amendment or additional documentation does not materially adversely affect
the rights, or materially increase the obligations, of the Borrowers under the
Loan Documents or change or affect in a manner adverse to the Borrowers the
financial terms of the Loans and (b) providing such information as may be
reasonably requested by the Lenders or Rating Agencies in connection with the
rating of the Loans or the Lender Securitization.


 


(h)        Consent
to Disclosure.  Subject to the
provisions of Section 12.08, each Loan Party authorizes each Lender
to disclose to any prospective participant or assignee of a Commitment, any and
all information in such Lender’s possession concerning the Loan Parties and
their financial affairs which has been delivered to such Lender by or on behalf
of the Loan Parties pursuant to this Agreement, or which has been delivered to
such Lender in connection with such Lender’s entering into this Agreement.


 


 


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Section 12.08               Confidentiality.


 


(a)         Each
of the Administrative Agent and each Lender agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its Affiliates and Approved Funds and to its and
its Affiliates’ and Approved Funds’ respective investors (actual or
prospective), partners, directors, officers, employees, agents, counsel,
accountants, advisors, actual and prospective investors, and other
representatives (collectively, the “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), or to Rating Agencies, (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 judicial or legal process, (d) to
any other party hereto, (e) in connection with 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) to (i) any assignee or pledgee of
or Participant in, or any prospective assignee or pledgee of or Participant in,
any of its rights or obligations under this Agreement, or (ii) any actual
or prospective counterparty to any swap or derivative transaction relating to
any Borrower or any other Loan Party and its obligations, provided that
such parties agree to be bound by confidentiality provisions substantially
similar to those hereunder, and to the Representatives of the foregoing parties
in clauses (i) and (ii), (g) with the consent of the Borrower
Representative, or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Lender, or any of their respective
Representatives on a non-confidential basis from a source other than the Loan
Parties.  The terms of this provision
shall supersede and replace any previous agreement regarding the no disclosure
of confidentiality of the Information. 
This provision shall terminate upon the termination of the Commitments
and payment of the Obligations.


 


For purposes of this Section, (i) “Information”
means, all information received from any Loan Party or any of its Subsidiaries
relating to any Loan Party or any of its Subsidiaries or any of their
respective businesses, other than any such information that is available to or
in the possession of the Administrative Agent, any Lender or the L/C Issuer or
their Representatives (or any intended recipient) on a non-confidential basis
prior to disclosure by any Loan Party or any of its Subsidiaries, provided
that, such information was or is clearly identified at the time of delivery as
confidential or would reasonably be expected to be deemed confidential.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information and
(ii) “Rating Agencies” means Moody’s Investor Services, Inc.,
Standard and Poor’s Ratings Group, a Division of McGraw Hill Corporation, Fitch
Ratings Ltd., or any other nationally recognized rating agency or service.  Notwithstanding anything herein to the
contrary, “Information” shall not include, and the Administrative Agent and
each 


 


 


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Lender may disclose without limitation
of any kind, any information with respect to the “tax treatment” and “tax
structure” (in each case, within the meaning of Treasury Regulation Section 1.6011-4)
of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax treatment and tax
structure; provided that with respect to any document or similar item
that in either case contains information concerning the tax treatment or tax
structure of the transaction as well as other information, this sentence shall
only apply to such portions of the document or similar item that relate to the
tax treatment or tax structure of the Loans and transactions contemplated
hereby.


 


(b)        No
Borrower or Subsidiary of a Borrower will in the future issue any press
releases or other public disclosure using the name of “Societe General”, “CIT
Lending Services Corporation” or its Affiliates or any other Lender or its
Affiliates or referring to this Agreement or the other Loan Documents without
at least two (2) Business Days’ prior notice to such Lender and without
the prior written consent of such Lender unless (and only to the extent that)
such Borrower or Subsidiary of a Borrower is required to do so under law and
then, in any event, such Borrower or Subsidiary of a Borrower will consult with
such Lender before issuing such press release or other public disclosure.  The Borrowers hereby consent to the publication
by any Lender of a tombstone or similar advertising material relating to the
financing transactions contemplated by this Agreement.  Each Lender reserves the right to provide to
industry trade organizations information necessary and customary for inclusion
in league table measurements.


 


Section 12.09               Set-off.  In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of any
Event of Default, each Lender and any Affiliate of a Lender is authorized at
any time and from time to time, with the prior written consent of the
Administrative Agent, but without prior notice to the Borrowers or any other
Loan Party, any such notice being waived by the Borrowers (on its own behalf
and on behalf of each Loan Party) 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 by, and other indebtedness at any time
owing by, such Lender or such Affiliate to or for the credit or the account of
the respective Loan Parties against any and all Obligations owing to such
Lender hereunder or under any other Loan Document, now or hereafter existing,
irrespective of whether or not the Administrative Agent or such Lender shall
have made demand under this Agreement or any other Loan Document and although
such Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness.  Each Lender agrees promptly to notify the
Borrowers and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.


 


Section 12.10               Interest Rate Limitation.  Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal


 


 


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of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrowers.  In
determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.


 


Section 12.11               Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


Section 12.12               Integration.  This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on
the subject matter hereof and thereof and supersedes all prior agreements,
written or oral, on such subject matter; provided that the Fee Letter
shall survive the effectiveness of this Agreement and the initial Credit
Extensions hereunder and shall continue to be in full force and effect after
the Closing Date in accordance with its terms. 
In the event of any conflict between the provisions of this Agreement
and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies
in favor of the Administrative Agent or the Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement.  Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair
meaning thereof.


 


Section 12.13               Survival of Representations
and Warranties.  All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been
or will be relied upon by the Administrative Agent and each Lender, regardless
of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied.


 


Section 12.14               Severability.  If any provision of this Agreement or any
other Loan Document is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions.  The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


Section 12.15               Replacement of Lenders.  Under any circumstances set forth herein
providing that the Borrowers shall have the right to replace a Lender as a
party to this 


 


 


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Agreement, the Borrowers may, upon notice to
such Lender and the Administrative Agent, replace such Lender by causing such
Lender to assign its Revolving Commitment, Delayed Draw Commitment and
outstanding Loans (with the assignment fee to be paid by the Borrowers in such
instance) pursuant to Section 12.07(b) to one or more other
Lenders or assignees satisfactory to the Administrative Agent and procured by
the Borrowers (each, a “replacement lender”); provided, however,
that if the Borrowers elect to exercise such right with respect to any Lender
pursuant to Section 3.06(b), it shall be obligated to replace all
Lenders that have made similar requests for compensation pursuant to Section 3.01
or 3.04.  The Borrowers shall have
reimbursed such Lender for its increased costs and additional payments for
which it is entitled to reimbursement under Section 3.01, 3.04
or 3.05, as applicable, through the date of such sale and
assignment.  Any Lender being replaced
shall execute and deliver an Assignment and Assumption with respect to such
Lender’s Commitment and outstanding Loans and such Lender’s L/C Exposure.


 


Section 12.16               Governing
Law.


 


(a)         THE
VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)        EACH
PARTY HERETO HEREBY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF THE SUPREME
COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY (INCLUDING ITS APPELLATE
DIVISION), AND OF ANY OTHER APPELLATE COURT IN THE STATE OF NEW YORK, FOR THE
PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS LOAN
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH LOAN PARTY HEREBY ALSO SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ALL FEDERAL AND STATE COURTS SITTING IN ANY STATE
IN WHICH A BORROWER OR OTHER LOAN PARTY OWNS PROPERTY OR OPERATES ITS
BUSINESS.  EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


Section 12.17               Waiver of Right to Trial by
Jury.  EACH PARTY
TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN 


 


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ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.


 


Section 12.18               USA Patriot Act Notice.  Each Lender and the Administrative Agent (for
itself and not on behalf of any Lender) hereby notifies the Loan Parties that
pursuant to the requirements of the Patriot Act, it is required to obtain,
verify and record information that identifies the Loan Parties, which
information includes the name and address of the Loan Parties and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Loan Parties in accordance with the Patriot Act.


 


Section 12.19               Nonliability of Lenders.  The relationship between the Loan Parties on
the one hand and the Lenders and the Administrative Agent on the other hand
shall be solely that of borrower or guarantor, as applicable, and lender.  Neither the Administrative Agent nor any
Lender has any fiduciary relationship with or duty to any Loan Party arising
out of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Loan Parties, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor.  Neither the Administrative Agent nor any
Lender undertakes any responsibility to any Loan Party to review or inform any
Loan Party of any matter in connection with any phase of any Loan Party’s business
or operations.  The Loan Parties agree
that neither the Administrative Agent nor any Lender shall have liability to
any Loan Party (whether sounding in tort, contract or otherwise) for losses
suffered by any Loan Party in connection with, arising out of, or in any way
related to the transactions contemplated and the relationship established by
the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a
court of competent jurisdiction that such losses resulted from the gross
negligence or willful misconduct of the party from which recovery is
sought.  NO LENDER PARTY SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM THE USE BY
OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH INTRALINKS OR
OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH THIS
AGREEMENT, NOR SHALL ANY LENDER PARTY HAVE ANY LIABILITY WITH RESPECT TO, AND
THE BORROWER REPRESENTATIVE ON BEHALF OF ITSELF AND EACH OTHER LOAN PARTY,
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR ANY SPECIAL, PUNITIVE,
INDIRECT OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR ARISING OUT OF ITS ACTIVITIES IN CONNECTION HEREWITH OR THEREWITH
(WHETHER BEFORE OR AFTER THE CLOSING DATE).  The Loan Parties acknowledge that they have
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other 


 


 


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Loan Documents to which it is a party.  No joint venture is created hereby or by the
other Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Agents, Lenders or among the Loan Parties and the
Lenders and the Agents.


 


ARTICLE XIII



APPOINTMENT OF THE BORROWER REPRESENTATIVE;

JOINT AND SEVERAL LIABILITY OF THE BORROWERS


 


Section 13.01               Borrower Representative.  Each Borrower hereby irrevocably appoints the
Borrower Representative, as the agent for such Borrower on its behalf, to (i) request
Loans from the Lenders, (ii) request L/C issuer to issue Letters of
Credit, (iii) to give and receive notices under the Loan Documents and (iv) take
all other action which the Borrower Representative or the Borrowers are
permitted or required to take under this Agreement.


 


Section 13.02               Joint
and Several Liability of Borrowers.


 


(a)         Joint
and Several Liability.  Each Borrower
hereby agrees that such Borrower is jointly and severally liable for, and
hereby absolutely and unconditionally guarantees to the Administrative Agent
and Lenders and their respective successors and assigns, the full and prompt
payment (whether at stated maturity, by acceleration or otherwise) and
performance of, all Obligations owed or hereafter owing to the Administrative
Agent and Lenders by each other Borrower. 
Each Borrower agrees that its guaranty obligation hereunder is a
continuing guaranty of payment and performance and not of collection, that its
obligations under this Section 13.02 shall not be discharged until
payment and performance, in full, of the Obligations has occurred, and that its
obligations under this Section 13.02 shall be absolute,
unconditional and irrevocable, irrespective of, and unaffected by, (i) the
genuineness, validity, regularity, enforceability or any future amendment of,
or change in, this Agreement, any other Loan Document or any other agreement,
document or instrument to which any Borrower is or may become a party; (ii) the
absence of any action to enforce this Agreement (including this Section 13.02)
or any other Loan Document or the waiver or consent by the Administrative Agent
and Lenders with respect to any of the provisions thereof; (iii) the
insolvency of any Borrower or Subsidiary; and (iv) any other action or
circumstances that might otherwise constitute a legal or equitable discharge or
defense of a surety or guarantor.  Each
Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations guaranteed hereunder.


 


(b)        Waivers
by Borrowers.  Each Borrower expressly
waives all rights it may have now or in the future under any statute, or at
common law, or at law or in equity, or otherwise, to compel the Administrative
Agent or Lenders to marshal assets or to proceed in respect of the Obligations
guaranteed hereunder against any other Borrower or Subsidiary, any other party
or against any security for the payment and performance of the Obligations
before proceeding against, or as a condition to proceeding against, such
Borrower.  Each Borrower consents and
agrees that the Administrative Agent or the Lenders may, at any time and from
time to time, without 


 


 


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notice or demand, whether before or after any actual or purported
termination, repudiation or revocation of this Agreement by any Borrower, and
without affecting the enforceability or continuing effectiveness hereof as to
such Borrower:  (i) as permitted
under this Agreement, supplement, restate, modify, amend, increase, decrease,
extend, renew or otherwise change the time for payment or the terms of this
Agreement or any part thereof, including any increase or decrease of the rate(s) of
interest thereon; (ii) as permitted under this Agreement, supplement,
restate, modify, amend, increase, decrease, or enter into or give any agreement
with respect to, this Agreement or any part thereof, or any of the Security
Documents; (iii) waive, approve or consent to any action, condition,
covenant, default, remedy, right, representation or term of this Agreement or
any other Loan Document; (iv) accept partial payments; (v) release,
reconvey, terminate, waive, abandon, fail to perfect, subordinate, exchange,
substitute, transfer or enforce any security or guarantees, and apply any
security and direct the order or manner of sale thereof as the Agents or
Lenders in their sole and absolute discretion may determine; (vi) release
any person from any personal liability with respect to this Agreement or any
part thereof; (vii) settle, release on terms satisfactory to the Required
Lenders or by operation of applicable Laws or otherwise liquidate or enforce
any security or guaranty in any manner, consent to the transfer of any security
and bid and purchase at any sale; or (viii) consent to the merger, change
or any other restructuring or termination of the corporate or partnership
existence of any Borrower or any other person, and correspondingly restructure
the obligations evidenced hereby, and any such merger, change, restructuring or
termination shall not affect the liability of any Borrower or the continuing
effectiveness hereof, or the enforceability hereof with respect to all or any
part of the obligations evidenced hereby. 
It is agreed among each Borrower, the Administrative Agent and Lenders
that the foregoing consents and waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for
the provisions of this Section 13.02 and such waivers, the
Administrative Agent and Lenders would decline to enter into this Agreement.


 


(c)         Benefit
of Guaranty.  Each Borrower agrees
that the provisions of this Section 13.02 are for the benefit of
the Administrative Agent and Lenders and their respective successors,
transferees, endorsees and assigns, and nothing herein contained shall impair,
as between any other Borrower and the Administrative Agent or Lenders, the
obligations of such other Borrower under the Loan Documents.


 


(d)        Waiver
of Subrogation, Etc.  Notwithstanding
anything to the contrary in this Agreement or in any other Loan Document, and
except as set forth in Section 13.02(g), each Borrower hereby
expressly and irrevocably waives any and all rights at law or in equity to
subrogation, reimbursement, exoneration, contribution, indemnification or set
off and any and all defenses available to a surety, guarantor or accommodation
co-obligor.  Each Borrower acknowledges
and agrees that this waiver is intended to benefit the Administrative Agent and
Lenders and shall not limit or otherwise affect such Borrower’s liability
hereunder or the enforceability of this Section 13.02, and that the
Administrative Agent, Lenders and their respective 


 


 


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successors and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 13.02(d).


 


(e)         Election
of Remedies.  If the Administrative
Agent or any Lender may, under applicable law, proceed to realize its benefits
under any of the Loan Documents, the Administrative Agent or any Lender may, at
its sole option, determine which of its remedies or rights it may pursue
without affecting any of its rights and remedies under this Section 13.02.  If, in the exercise of any of its rights and
remedies, the Administrative Agent or any Lender shall forfeit any of its rights
or remedies, including its right to enter a deficiency judgment against any
Borrower or any other Person, whether because of any applicable laws pertaining
to “election of remedies” or the like, each Borrower hereby consents to such
action by the Administrative Agent or such Lender and waives any claim based
upon such action, even if such action by the Administrative Agent or such
Lender shall result in a full or partial loss of any rights of subrogation that
each Borrower might otherwise have had but for such action by the
Administrative Agent or such Lender.  Any
election of remedies that results in the denial or impairment of the right of
the Administrative Agent or any Lender to seek a deficiency judgment against
any Borrower shall not impair any other Borrower’s obligation to pay the full
amount of the Obligations.


 


(f)         Limitation.  Notwithstanding any provision herein
contained to the contrary, each Borrower’s liability under this Section 13.02
(which liability is in any event in addition to amounts for which such Borrower
is primarily liable under Article II) shall be limited to an amount
not to exceed as of any date of determination the greater of:


 


(i)            the
net amount of all Loans advanced to any other Borrower under this Agreement and
then re-loaned or otherwise transferred to, or for the benefit of, such
Borrower; and


 


(ii)           the
amount that could be claimed by the Administrative Agent and Lenders from such
Borrower under this Section 13.02 without rendering such claim
voidable or avoidable under Section 548 of the Bankruptcy Code or under
any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law after taking into account,
among other things, such Borrower’s right of contribution and indemnification
from each other Borrower under Section 13.02(g).


 


(g)        Contribution with Respect to Guaranty Obligations.


 


(i)            To
the extent that any Borrower shall make a payment under this Section 13.02
of all or any of the Obligations related to Loans and other extensions of
credit made by that Borrower, or on such Borrower’s behalf, in which cases such
Borrower shall be primarily liable (a “Guarantor Payment”) that, taking
into account all other Guarantor Payments then previously or concurrently made
by any other Borrower, exceeds the amount that such Borrower would otherwise
have 


 


 


136





















 


paid if each Borrower had paid the aggregate Obligations satisfied by
such Guarantor Payment in the same proportion that such Borrower’s “Allocable
Amount” (as defined below) (as determined immediately prior to such Guarantor
Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as
determined immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Obligations and termination of the
Commitments, such Borrower shall be entitled to receive contribution and
indemnification payments from, and be reimbursed by, each other Borrower for
the amount of such excess, pro rata based upon their respective Allocable
Amounts in effect immediately prior to such Guarantor Payment.


 


(ii)           As
of any date of determination, the “Allocable Amount” of any Borrower
shall be equal to the maximum amount of the claim that could then be recovered
from such Borrower under this Section 13.02 without rendering such
claim voidable or avoidable under Section 548 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.


 


(iii)          This
Section 13.02(g) is intended only to define the relative rights of
the Borrowers and nothing set forth in this Section 13.02(g) is
intended to or shall impair the obligations of the Borrowers, jointly and
severally, to pay any amounts as and when the same shall become due and payable
in accordance with the terms of this Agreement, including Section 13.02(a).  Nothing contained in this Section 13.02(g) shall
limit the liability of any Borrower to pay the obligations related to the Loans
or other Credit Extensions made directly or indirectly to or on behalf of that
Borrower and accrued interest, fees and expenses with respect thereto for which
such Borrower shall be primarily liable.


 


(iv)          The
parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of the Borrowers to which such contribution
and indemnification is owing.


 


(v)           The
rights of the indemnifying Borrowers against other Borrowers under this Section 13.02(g) shall
be exercisable upon the Termination Date and shall be fully subordinated to the
Obligations owed to the Secured Parties.


 


(h)        Liability
Cumulative.  The liability of the
Borrowers under this Section 13.02 is in addition to and shall be
cumulative with all liabilities of each Borrower to the Administrative Agent
and Lenders under this Agreement and the other Loan Documents to which such
Borrower is a party or in respect of any Obligations or obligation of the other
Borrower, without any limitation as to amount, unless the instrument or
agreement evidencing or creating such other liability specifically provides to
the contrary.


 


(i)          Stay
of Acceleration.  If acceleration of
the time for payment of any amount payable by the Borrowers under this Agreement
is stayed upon the 


 


 


137





















 


insolvency, bankruptcy or reorganization of any of the Borrowers, all
such amounts otherwise subject to acceleration under the terms of this
Agreement shall nonetheless be payable jointly and severally by the Borrower
hereunder forthwith on demand by the Administrative Agent made at the request
of the Required Lenders.


 


(j)          Benefit
to Borrowers.  All of the Borrowers
and their Subsidiaries are engaged in related businesses and integrated to such
an extent that the financial strength and flexibility of each such Person has a
direct impact on the success of each other Person.  Each Borrower and each Subsidiary will derive
substantial direct and indirect benefit from the extension of credit hereunder.


 


Signature Pages Follow


 


 


138






 












 


(Signature
Page to Credit and Guaranty Agreement)


 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the
date first above written.


 


	
  BORROWERS:

  	
  ABOVENET,
  INC, a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET
  COMMUNICATIONS, INC.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET OF
  UTAH, LLC,

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  AboveNet
  Communications, Inc.,

  
	
   

  	
   

  	
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General
  Counsel

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ABOVENET OF VA, LLC, a Delaware 

  
	
   

  	
  limited liability company

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  AboveNet Communications, Inc.,

  
	
   

  	
   

  	
  its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Robert Sokota

  
	
   

  	
  Name: 

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General
  Counsel

  



 


 

















 


	
   

  	
  ABOVENET INTERNATIONAL, INC,
  a 

  
	
   

  	
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Sokota

  
	
   

  	
  Name:

  	
  Robert Sokota

  
	
   

  	
  Title:

  	
  SVP and General
  Counsel

  



 


 

















 


	
  ADMINISTRATIVE AGENT:

  	
  SOCIETE GENERAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elaine Khalil

  
	
   

  	
  Name:

  	
  Elaine Khalil

  
	
   

  	
  Title:

  	
  Managing Director

  



 


 

















 


	
  DOCUMENTATION AGENT:

  	
  CIT LENDING SERVICES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony Holland

  
	
   

  	
  Name:

  	
  Anthony Holland

  
	
   

  	
  Title:

  	
  Vice President

  



 


 

















 


	
  INITIAL LENDERS:

  	
  CIT LENDING SERVICES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony Holland

  
	
   

  	
  Name:

  	
  Anthony Holland

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SOCIETE GENERAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elaine Khalil

  
	
   

  	
  Name:

  	
  Elaine Khalil

  
	
   

  	
  Title:

  	
  Managing Director