Exhibit 10.1
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CREDIT AGREEMENT
dated as of September 9, 2003,
as amended and restated as of January 31, 2006,
among
DEX MEDIA, INC.,
DEX MEDIA WEST, INC.,
DEX MEDIA WEST LLC,
as Borrower,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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WACHOVIA BANK, NATIONAL ASSOCIATION,
as Syndication Agent
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BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC.,
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P. and
UBS SECURITIES LLC,
as Co-Documentation Agents
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▇.▇. ▇▇▇▇▇▇ SECURITIES INC. and WACHOVIA CAPITAL MARKETS LLC,
as Co-Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions
Section 1.01 Defined Terms............................................... 1
Section 1.02 Classification of Loans and Borrowings...................... 31
Section 1.03 Terms Generally............................................. 31
Section 1.04 Accounting Terms; GAAP...................................... 32
ARTICLE II
The Credits
Section 2.01 Commitments................................................. 32
Section 2.02 Loans and Borrowings........................................ 32
Section 2.03 Requests for Borrowings..................................... 33
Section 2.04 Swingline Loans............................................. 34
Section 2.05 Letters of Credit........................................... 35
Section 2.06 Funding of Borrowings....................................... 38
Section 2.07 Interest Elections.......................................... 39
Section 2.08 Termination and Reduction of Commitments.................... 40
Section 2.09 Repayment of Loans; Evidence of Debt........................ 40
Section 2.10 Amortization of Term Loans.................................. 41
Section 2.11 Prepayment of Loans......................................... 43
Section 2.12 Fees........................................................ 45
Section 2.13 Interest.................................................... 46
Section 2.14 Alternate Rate of Interest.................................. 47
Section 2.15 Increased Costs............................................. 47
Section 2.16 Break Funding Payments...................................... 48
Section 2.17 Taxes....................................................... 49
Section 2.18 Payments Generally; Pro Rata Treatment; Sharing of Setoffs.. 50
Section 2.19 Mitigation Obligations; Replacement of Lenders.............. 51
ARTICLE III
Representations and Warranties
Section 3.01 Organization; Powers........................................ 52
Section 3.02 Authorization; Enforceability............................... 52
Section 3.03 Governmental Approvals; No Conflicts........................ 52
Section 3.04 Financial Condition; No Material Adverse Change............. 52
Section 3.05 Properties.................................................. 53
Section 3.06 Litigation and Environmental Matters........................ 53
Contents, p. 2
Section 3.07 Compliance with Laws and Agreements......................... 54
Section 3.08 Investment and Holding Company Status....................... 54
Section 3.09 Taxes....................................................... 54
Section 3.10 ERISA; Margin Regulations................................... 54
Section 3.11 Disclosure.................................................. 54
Section 3.12 Subsidiaries................................................ 55
Section 3.13 Insurance................................................... 55
Section 3.14 Labor Matters............................................... 55
Section 3.15 Solvency.................................................... 55
Section 3.16 Senior Indebtedness......................................... 55
Section 3.17 Parent Acquisition.......................................... 55
Section 3.18 Security Documents.......................................... 56
Section 3.19 Liens....................................................... 56
Section 3.20 No Burdensome Restrictions.................................. 56
ARTICLE IV
Conditions
Section 4.01 Each Credit Event........................................... 57
ARTICLE V
Affirmative Covenants
Section 5.01 Financial Statements and Other Information.................. 57
Section 5.02 Notices of Material Events.................................. 59
Section 5.03 Information Regarding Collateral............................ 59
Section 5.04 Existence; Conduct of Business.............................. 60
Section 5.05 Payment of Obligations...................................... 60
Section 5.06 Maintenance of Properties................................... 60
Section 5.07 Insurance................................................... 60
Section 5.08 Casualty and Condemnation................................... 60
Section 5.09 Books and Records; Inspection and Audit Rights.............. 61
Section 5.10 Compliance with Laws........................................ 61
Section 5.11 Use of Proceeds and Letters of Credit....................... 61
Section 5.12 Additional Subsidiaries..................................... 61
Section 5.13 Further Assurances.......................................... 61
Section 5.14 Interest Rate Protection.................................... 62
Section 5.15 Transition of Qwest Billing................................. 62
ARTICLE VI
Negative Covenants
Section 6.01 Indebtedness; Certain Equity Securities..................... 62
Section 6.02 Liens....................................................... 64
Section 6.03 Fundamental Changes......................................... 65
Section 6.04 Investments, Loans, Advances, Guarantees and Acquisitions... 65
Section 6.05 Asset Sales................................................. 67
Contents, p. 3
Section 6.06 Sale and Leaseback Transactions............................. 68
Section 6.07 Swap Agreements............................................. 68
Section 6.08 Restricted Payments; Certain Payments of Indebtedness....... 68
Section 6.09 Transactions with Affiliates................................ 71
Section 6.10 Restrictive Agreements...................................... 72
Section 6.11 Change in Business.......................................... 72
Section 6.12 Fiscal Year................................................. 72
Section 6.13 Amendment of Material Documents............................. 72
Section 6.14 Tax Payments................................................ 73
Section 6.15 Interest Coverage Ratio..................................... 73
Section 6.16 [Reserved].................................................. 73
Section 6.17 Leverage Ratio.............................................. 73
Section 6.18 Senior Secured Leverage Ratio............................... 74
Section 6.19 [Reserved].................................................. 74
Section 6.20 Collections, Funds and Permitted Investments................ 74
Section 6.21 Employee Outsourcing Arrangements........................... 75
Section 6.22 Parent Covenants............................................ 75
Section 6.23 Designation of Unrestricted Subsidiaries.................... 76
Section 6.24 Commingling of Accounts..................................... 77
ARTICLE VII
Events of Default
ARTICLE VIII
The Agent
ARTICLE IX
Miscellaneous
Section 9.01 Notices..................................................... 81
Section 9.02 Waivers; Amendments......................................... 82
Section 9.03 Expenses; Indemnity; Damage Waiver.......................... 84
Section 9.04 Successors and Assigns...................................... 85
Section 9.05 Survival.................................................... 88
Section 9.06 Counterparts; Integration; Effectiveness.................... 88
Section 9.07 Severability................................................ 88
Section 9.08 Right of Setoff............................................. 88
Section 9.09 Governing Law; Jurisdiction; Consent to Service of Process.. 88
Section 9.10 WAIVER OF JURY TRIAL........................................ 89
Section 9.11 Headings.................................................... 89
Section 9.12 Confidentiality............................................. 89
Section 9.13 Interest Rate Limitation.................................... 90
Section 9.14 Termination or Release...................................... 90
Section 9.15 USA Patriot Act............................................. 91
Contents, p. 4
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.03 -- Governmental Approvals; No Conflicts
Schedule 3.05 -- Properties
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B -- Form of Guarantee and Collateral Agreement
Exhibit C -- Form of Affiliate Subordination Agreement
Exhibit D -- Form of Parent Pledge Agreement
CREDIT AGREEMENT, dated as of September 9, 2003, as amended and
restated as of January 31, 2006 (this "Agreement"), among DEX MEDIA, INC., a
Delaware corporation, DEX MEDIA WEST, INC., a Delaware corporation, DEX MEDIA
WEST LLC, a Delaware limited liability company, the LENDERS from time to time
party hereto and JPMORGAN CHASE BANK, N.A., as administrative agent and
collateral agent for such lenders.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means JPMorgan Chase Bank, N.A., in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Affiliate Subordination Agreement" means an Affiliate Subordination
Agreement substantially in the form of Exhibit C pursuant to which intercompany
obligations and advances owed by any Loan Party are subordinated to the
Obligations.
"Agent" means JPMorgan Chase Bank, N.A., in its capacities as
Administrative Agent and/or Collateral Agent, and each of its Affiliates and
successors acting in any such capacity. The Administrative Agent may act on
behalf of or in place of any Person included in the "Agent".
"Agreement to Amend and Restate" means the Agreement to Amend and
Restate, dated as of December 13, 2005, among RHD Corp. (for purposes of
Sections 6, 7 and 12 thereof), the Administrative Agent and the lenders party
thereto.
"Allocable Net Proceeds" means, with respect to (i) any Equity
Issuance of the Parent, 58% of the Net Proceeds of such Equity Issuance and (ii)
any Damages Event, the Net Proceeds of that portion of any liquidated damage
payment pursuant to the Non-Competition Agreement or the Publishing Agreement,
or any payments in settlement of claims relating thereto, that is calculated
with reference to, or otherwise allocable to, the purchase price paid for the
West Acquisition. For purposes of determining Allocable Net Proceeds, any costs
and expenses deducted from gross proceeds shall be allocated ratably
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to that portion of Net Proceeds representing Allocable Net Proceeds and that
portion not representing Allocable Net Proceeds.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may
be.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the relative amounts
of the Revolving Exposures of the Revolving Lenders.
"Applicable Rate" means, for any day (a) with respect to any Tranche B
Term Loan, 0.75% per annum, in the case of an ABR Loan, and 1.75% per annum, in
the case of a Eurodollar Loan, (b) with respect to any Tranche B-1 Term Loan,
0.50% per annum, in the case of an ABR Loan, and 1.50% per annum, in the case of
a Eurodollar Loan, and (c) with respect to any ABR Loan or Eurodollar Loan that
is a Revolving Loan or a Tranche A Term Loan, or with respect to the commitment
fees payable hereunder, as the case may be, the applicable rate per annum set
forth below under the caption "ABR Spread", "Eurodollar Spread" or "Commitment
Fee Rate", as the case may be, based upon the Leverage Ratio as of the most
recent determination date:
ABR Eurodollar Commitment Fee
Leverage Ratio: Spread Spread Rate
--------------- ------ ---------- --------------
Category 1 0.25% 1.25% 0.375%
greater than or equal to
3.75 to 1.00
Category 2 0.0% 1.00% 0.375%
greater than or equal to
2.75 to 1.00
but less than 3.75 to 1.00
Category 3 0.0% 0.875% 0.375%
less than 2.75 to 1.00
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the consolidated financial statements delivered pursuant to Section
5.01(a) or (b) and (ii) each change in the Applicable Rate resulting from a
change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such
consolidated financial statements indicating such change and ending on the date
immediately preceding the effective date of the next such change; provided that
the Leverage Ratio shall be deemed to be greater than 3.75 to 1.00 (A) at any
time that an Event of Default has occurred and is continuing or (B) if the
Borrower fails to deliver the consolidated financial statements required to be
delivered by it pursuant to Section 5.01(a) or (b), during the period from the
expiration of the time for delivery thereof until such consolidated financial
statements are delivered.
"Approved Fund" has the meaning assigned to such term in Section 9.04.
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"Arrangers" means ▇. ▇. ▇▇▇▇▇▇ Securities, Inc. and Wachovia Capital
Markets LLC.
"Asset Disposition" means (a) any sale, transfer or other disposition
(including pursuant to a sale and leaseback transaction but excluding any sale
of Securitization Assets pursuant to a Securitization) of any property or asset
of the Borrower or any Subsidiary and the receipt by the Borrower or any
Subsidiary Loan Party of any dividend or distribution from any Unrestricted
Subsidiary representing proceeds from the disposition by such Unrestricted
Subsidiary of assets outside the ordinary course of business or from the sale of
any Equity Interests in such Unrestricted Subsidiary, other than (i)
dispositions described in clauses (a), (b), (c), (d) and (e) of Section 6.05 and
(ii) other dispositions and dividends or distributions resulting in aggregate
Net Proceeds not exceeding $15,000,000 during any fiscal year of the Borrower,
(b) any casualty or other insured damage to, or any taking under power of
eminent domain or by condemnation or similar proceeding of, any property or
asset of the Borrower or any Subsidiary, but only to the extent that the Net
Proceeds therefrom have not been applied to repair, restore or replace such
property or asset within 365 days after such event and (c) any transfer of
Securitization Assets in a Securitization (and any subsequent transfer of
Securitization Assets that results in any increase in the aggregate funded
amount of any Securitization over the greatest aggregate funded amount
previously outstanding thereunder), provided that a Prepayment Event shall only
exist with respect to a Securitization to the extent the aggregate funded amount
of all such Securitizations outstanding at the time of determination exceeds the
aggregate amount of prepayments of Term Loans previously made hereunder in
respect of Securitizations.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Associated Employees" means employees of the East Borrower or of the
Employee Company that provide substantial services to or for the benefit of the
Borrower and its Subsidiaries and in respect of which the Borrower makes
payments to the East Borrower or the Employee Company pursuant to the Employee
Cost Sharing Agreement.
"Attributable Debt" means, on any date, in respect of any lease of
Holdings, the Borrower or any Subsidiary entered into as part of a sale and
leaseback transaction subject to Section 6.06, (a) if such lease is a Capital
Lease Obligation, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP and (b) if
such lease is not a Capital Lease Obligation, the capitalized amount of the
remaining lease payments under such lease that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP if such lease
were accounted for as a Capital Lease Obligation.
"Bankruptcy Code" means the United States Bankruptcy Code (11 U.S.C.
Section 101 et seq.), as amended from time to time, and any successor statute.
"Base QPI" means up to $750,000,000 of aggregate principal amount of
Qualifying Parent Indebtedness at any time outstanding.
"Base RHD Indebtedness" means up to $2,650,000,000 of aggregate
principal amount of Indebtedness of RHD Corp. at any time outstanding.
"Billing and Collection Agreement" means (a) prior to November 1,
2004, the Agreement for the Provision of Billing and Collection Services for
Directory Publishing Services dated as of September 9, 2003, between Qwest Corp.
and the Borrower and (b) after November 1, 2004, the
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Agreement for the Provision of Billing and Collection Services for Directory
Publishing Services dated as of November 1, 2004, between Qwest Corp. and
Parent.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Dex Media West LLC, a Delaware limited liability
company, all of the Equity Interests of which are owned by Holdings.
"Borrower Receivables" means the receivables of the Borrower or its
Subsidiaries subject to purchase by Qwest Corp. pursuant to the Billing and
Collection Agreement.
"Borrower's Portion of Excess Cash Flow" means, with respect to Excess
Cash Flow in respect of any fiscal year (a) if the Leverage Ratio as of the end
of such fiscal year is less than 5.00 to 1.00, 100% of the amount of such Excess
Cash Flow and (b) otherwise, 50% of the amount of such Excess Cash Flow.
"Borrowing" means (a) Loans of the same Class and Type, made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, for any period, without duplication, the
additions to property, plant and equipment and other capital expenditures of the
Borrower and its consolidated Subsidiaries for such period, determined in
accordance with GAAP.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" means:
(a) the acquisition of ownership, beneficially or of record, by any
Person other than Holdings of any Equity Interest in the Borrower;
(b) the acquisition of ownership, beneficially or of record, by any
Person other than the Parent of any Equity Interest in Holdings;
(c) the acquisition of ownership, beneficially or of record, by any
Person other than RHD Corp. of any Equity Interest in the Parent;
5
(d) occupation of a majority of the seats (other than vacant seats) on
the Governing Board of the Parent or Holdings by Persons who were neither
(i) nominated by the Governing Board of the Parent or Holdings or (ii)
appointed by Persons so nominated;
(e) the occurrence of a "Change of Control", as defined in the Senior
Subordinated Debt Documents (but excluding any such Change of Control
thereunder in connection with the consummation of the Parent Acquisition);
or
(f) the occurrence of a "Change of Control", as defined in the Senior
Unsecured Debt Documents (but excluding any such Change of Control
thereunder in connection with the consummation of the Parent Acquisition).
"Change in Control Offers" means, in connection with or as a result of
the Parent Acquisition, the respective requirements of (a) Parent to offer to
repurchase the Existing Parent Notes and (b) the Borrower to offer to repurchase
the Senior Unsecured Notes and the Senior Subordinated Notes, in each case at a
premium to the outstanding principal amount thereof.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender
or by such Lender's or the Issuing Bank'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.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans, Tranche B-1 Term Loans or Swingline
Loans and, when used in reference to any Commitment, refers to whether such
Commitment is a Revolving Commitment or a Tranche B-1 Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all "Collateral", as defined in any
Security Document, including any and all "Pledged Collateral" as defined in the
Parent Pledge Agreement.
"Collateral Agent" means JPMorgan Chase Bank, N.A., in its capacity as
collateral agent for the Secured Parties.
"Collateral Agreement" means the Guarantee and Collateral Agreement
among Holdings, the Borrower, the Subsidiary Loan Parties and the Agent,
substantially in the form of Exhibit B.
"Collateral and Guarantee Requirement" means the requirement that:
(a) the Agent shall have received from each Loan Party either (i) a
counterpart of the Collateral Agreement duly executed and delivered on
behalf of such Loan Party or (ii) in the case of any Person that becomes a
Loan Party after the Restatement Effective Date, a supplement to the
Collateral Agreement, in the form specified therein, duly executed and
delivered on behalf of such Loan Party;
(b) all outstanding Equity Interests of the Borrower and each
Subsidiary owned by or on behalf of any Loan Party shall have been pledged
pursuant to the Collateral Agreement (except
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that the Loan Parties shall not be required to pledge more than 65% of the
outstanding voting Equity Interests of any Foreign Subsidiary that is not a
Loan Party) and the Agent shall have received all certificates or other
instruments representing such Equity Interests, together with stock powers
or other instruments of transfer with respect thereto endorsed in blank;
(c) all Indebtedness of Holdings, the Borrower and each Subsidiary
that is owing to any Loan Party shall be evidenced by a promissory note and
shall have been pledged pursuant to the Collateral Agreement and the Agent
shall have received all such promissory notes, together with note powers or
other instruments of transfer with respect thereto endorsed in blank, and
all such Indebtedness shall be subordinated to the Obligations pursuant to
the Affiliate Subordination Agreement;
(d) all documents and instruments, including Uniform Commercial Code
financing statements, required by law or reasonably requested by the Agent
to be filed, registered or recorded to create the Liens intended to be
created by the Collateral Agreement (including any supplements thereto) and
perfect such Liens to the extent required by, and with the priority
required by, the Collateral Agreement, shall have been filed, registered or
recorded or delivered to the Agent for filing, registration or recording;
(e) the Agent shall have received (i) counterparts of any Mortgage
required to be entered into after the Restatement Effective Date pursuant
to Section 5.13 with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy or
policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid first
Lien on the Mortgaged Property described therein, free of any other Liens
except as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Agent or the Required
Lenders may reasonably request, and (iii) such surveys, abstracts,
appraisals, legal opinions and other documents as the Agent or the Required
Lenders may reasonably request with respect to any such Mortgage or
Mortgaged Property; and
(f) each Loan Party shall have obtained all consents and approvals
required to be obtained by it in connection with the execution and delivery
of all Security Documents (or supplements thereto) to which it is a party,
the performance of its obligations thereunder and the granting by it of the
Liens thereunder.
"Commitment" means a Revolving Commitment or a Tranche B-1 Commitment,
or any combination thereof (as the context requires).
"Consolidated Cash Interest Expense" means, for any period, the excess
of (a) the sum of (i) the interest expense (including imputed interest expense
in respect of Capital Lease Obligations) of Holdings, the Borrower and the
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP, plus (ii) any cash payments made during such period in respect of
obligations referred to in clause (b)(iii) below that were amortized or accrued
in a previous period, plus (iii) the amount of dividends paid by Holdings during
such period pursuant to Section 6.08(a)(viii) and Section 6.08(a)(x), plus (iv)
to the extent not otherwise included in the interest expense of Holdings, the
Borrower and the Subsidiaries for such period, commissions, discounts, yield,
loss on sales and other fees and charges during such period in connection with
any Securitizations payable to any person other than Holdings, the Borrower and
the Subsidiaries, minus (b) the sum of (i) interest income of Holdings, the
Borrower and the Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP, plus (ii) to the extent included in such
consolidated interest expense for such period, amounts attributable to
amortization of financing costs, plus (iii) to the extent included in such
consolidated
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interest expense for such period, non-cash amounts attributable to amortization
of debt discounts or accrued interest payable in kind for such period, plus (iv)
to the extent included in such consolidated interest expense for such period,
amounts attributable to premiums paid, prepayment fees or penalties related to
the repayment of Indebtedness, plus (v) to the extent included in the interest
expense of Holdings, the Borrower and the Subsidiaries for such period, any one
time financing fees upon entering into any Securitization. For purposes of the
foregoing, interest expense of any Person shall be determined after giving
effect to any net payments made or received by such Person with respect to
interest rate Swap Agreements (other than early termination payments).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such period,
(iv) any extraordinary charges or non-cash charges for such period (provided,
however, that any cash payment or expenditure made with respect to any such
non-cash charge shall be subtracted in computing Consolidated EBITDA during the
period in which such cash payment or expenditure is made), (v) restructuring and
synergy charges incurred during the fiscal periods ending on or prior to
December 31, 2007 in connection with the Parent Acquisition in an aggregate
amount not exceeding $40,000,000 and (vi) non-recurring charges consisting of
(A) severance costs associated with a restructuring, (B) payments of customary
investment and commercial banking fees and expenses, (C) cash premiums,
penalties or other payments payable in connection with the early extinguishment
or repurchase of Indebtedness and (D) costs associated with the termination of
projects to develop information technology and software, and minus (b) without
duplication and to the extent included in determining such Consolidated Net
Income, any extraordinary gains and non-cash gains for such period, all
determined on a consolidated basis in accordance with GAAP. For purposes of
calculating the Leverage Ratio and the Senior Secured Leverage Ratio as of any
date, if the Borrower or any consolidated Subsidiary has made any Permitted
Acquisition or sale, transfer, lease or other disposition outside of the
ordinary course of business of a Subsidiary or of assets constituting a business
unit, in each case as permitted by Section 6.05, during the period of four
consecutive fiscal quarters (a "Reference Period") most recently ended on or
prior to such date, Consolidated EBITDA for the such Reference Period shall be
calculated after giving pro forma effect thereto, as if such Permitted
Acquisition or sale, transfer, lease or other disposition (and any related
incurrence, repayment or assumption of Indebtedness with any new Indebtedness
being deemed to be amortized over the applicable testing period in accordance
with its terms) had occurred on the first day of such Reference Period.
"Consolidated Net Income" means, for any period, the net income or
loss, before the effect of the payment of any dividends in respect of preferred
stock, of Holdings, the Borrower and the Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP (adjusted to reflect any charge,
tax or expense incurred or accrued by the Parent during such period as though
such charge, tax or expense had been incurred by the Borrower, to the extent
that Holdings or the Borrower has made or would be entitled under the Loan
Documents to make and intends to make any payment or dividend to or for the
account of the Parent in respect thereof (but without duplication of any such
charge, tax or expense in respect of which East Holdings or the East Borrower
has made or intends to make a payment or dividend to or for the account of the
Parent) and adjusted to eliminate any non-cash impact attributable to the
reduction in deferred revenue or reduction in deferred costs to balance sheet
accounts as a result of the fair value exercise undertaken as required by
purchase method of accounting for the transactions contemplated by any
acquisition (including without limitation the Parent Acquisition), in accordance
with GAAP); provided that there shall be excluded (a) the income of any Person
(other than the Borrower or a Subsidiary Loan Party) in which any other Person
(other than the Borrower or any Subsidiary Loan Party or any director holding
qualifying shares in compliance with applicable law) owns an Equity Interest,
except to the extent of the amount of dividends or other distributions actually
paid to
8
the Borrower or any of the Subsidiary Loan Parties during such period, and (b)
the income or loss of any Person accrued prior to the date it becomes a
Subsidiary or is merged into or consolidated with the Borrower or any Subsidiary
or the date that such Person's assets are acquired by the Borrower or any
Subsidiary.
"Contractual Obligation" means, as to any Person, any obligation of
such Person under any provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of trust or other
instrument, document or agreement to which such Person is a party or by which it
or any of its property is bound.
"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.
"Core Qwest Agreements" means the Publishing Agreement and the
Non-Competition Agreement.
"Damages Event" means the receipt by the Parent, Holdings, the
Borrower or any Affiliate of the Parent of any payment made by Qwest Corp.,
Qwest or any Affiliate thereof (i) constituting liquidated damages or other
damages paid pursuant to, or as a result of the breach or asserted breach of
obligations under, any Core Qwest Agreement or (ii) representing amounts paid in
settlement or compromise of claims that Qwest Corp., Qwest or any Affiliate
thereof has breached its obligations under any Core Qwest Agreement.
"Debt Issuance" means the incurrence by Holdings, the Borrower or any
Subsidiary of any Indebtedness, other than Indebtedness permitted by Section
6.01(a) (other than by clause (x) thereof).
"Default" means any event or condition that constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Equity Proceeds" means (a) Equity Proceeds received by the
Parent or Holdings and (b) Equity Proceeds received by Holdings representing Net
Proceeds from the issuance of Parent Non-Cash Pay Debt, which in each case (i)
not later than the date of receipt thereof by the Parent or Holdings are
designated as such by the Parent or Holdings, as applicable, pursuant to a
notice given to the Administrative Agent specifying the amount thereof and the
Designated Equity Proceeds Uses to which such Equity Proceeds will be applied
(and the respective amounts to be applied if multiple uses are specified), which
specification shall comply with the limitations set forth in the definition of
Designated Equity Proceeds Use, and, in the case of Equity Proceeds in respect
of Non-Cash Pay Preferred Stock or representing proceeds from the issuance of
Parent Non-Cash Pay Debt, attaching the certificate of designation, indenture,
or other operative document containing the terms and conditions of such Non-Cash
Pay Preferred Stock or Parent Non-Cash Pay Debt, as the case may be, and any
purchase or subscription agreement relating to the issuance and sale thereof,
and (ii) except for Designated Equity Proceeds specified to be applied to
general working capital needs, are, within 90 days of the date of receipt
thereof (or in the case of proceeds from Parent Non-Cash Pay Debt, from the date
of receipt thereof by the Parent) applied to the Designated Equity Proceeds Uses
specified in such notice in the amounts so specified. Any Equity Proceeds that
do not satisfy the foregoing requirements will be deemed Equity Proceeds (or
Allocable Net Proceeds, as applicable) in respect of which Section 2.11(c) will
apply, and in the case of any failure to satisfy the requirement in clause (ii)
of the immediately preceding sentence, will be deemed to have been received at
the time the 90-day period referred to therein expires. Notwithstanding the
foregoing, Designated Equity Proceeds (x) may include amounts dividended by
Holdings to the Parent pursuant to Section 6.08(a)(vii) which are thereafter
reinvested by the Parent in
9
Equity Interests of Holdings and (y) shall not in any event include Equity
Proceeds received by the Parent which constitute "Designated Equity Proceeds" as
defined in, and for purposes of, the East Credit Facilities.
"Designated Equity Proceeds Use" means the application of Designated
Equity Proceeds (a) to consummate a Permitted Acquisition pursuant to Section
6.04(g), (b) to make an Investment pursuant to Section 6.04(d) or Section
6.04(n), (c) to provide additional working capital to the Borrower and its
Subsidiaries or (d) to make Capital Expenditures for additions to property,
plant and equipment of the Borrower and its Subsidiaries.
"Designated Excess Cash Expenditures" means the use of the Borrower's
Portion of Excess Cash Flow in respect of any fiscal year (i) to make Restricted
Payments pursuant to Section 6.08(a)(v)(B) or (ii) to effect Optional
Repurchases of Indebtedness pursuant to Section 6.08(b)(vi).
"Dex" means Qwest Dex, Inc., a Colorado corporation.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"Domestic Subsidiary" means any Subsidiary that is organized under the
laws of the United States of America or any State thereof or the District of
Columbia.
"dollars" or "$" refers to lawful money of the United States of
America.
"East Allocable Share" means, with respect to any amount, 42% of such
amount.
"East Borrower" means Dex Media East LLC, a Delaware limited liability
company and a subsidiary of East Holdings and the Parent.
"East Credit Agreement" means the Credit Agreement, dated as of
November 8, 2002, as amended and restated as of the date hereof, among the
Parent, East Holdings, the East Borrower, various lenders party thereto and
JPMorgan Chase Bank, N.A., as administrative agent.
"East Credit Facilities" means East Credit Agreement and the
guarantee, security and other agreements entered into in connection therewith
and defined as "Loan Documents" in the East Credit Agreement.
"East Entities" means East Holdings, the East Borrower and their
subsidiaries.
"East Holdings" means Dex Media East, Inc., a Delaware corporation and
a subsidiary of the Parent.
"East Indentures" means, (a) the Indenture dated as of November 8,
2002, among the East Borrower, Dex Media East Finance Co. and U.S. Bank National
Association, as trustee, relating to the East Borrower's 9-7/8% Senior Notes due
2009 and (b) the Indenture dated as of November 8, 2002, among the East
Borrower, Dex Media East Finance Co. and U.S. Bank National Association, as
trustee, relating to the East Borrower's 12-1/8% Senior Subordinated Notes due
2012.
"East Territories" means the states of Colorado, Iowa, Minnesota,
Nebraska, New Mexico, North Dakota and South Dakota and the ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇.
10
"Employee Company" means a limited purpose, bankruptcy remote limited
liability company to be established, if required by the provisions of Section
6.21, with at least 49% of the Equity Interests of which owned by Holdings or a
wholly owned subsidiary thereof and at least 49% of the Equity Interests of
which owned by East Holdings or a wholly owned subsidiary thereof, with the
remaining Equity Interests owned by Holdings or a wholly owned subsidiary
thereof, East Holdings or a wholly owned subsidiary thereof or the Parent, the
sole business of which will be (x) to employ substantially all management and
other employees conducting and providing services to (i) businesses conducted by
the Borrower or its subsidiaries or (ii) the East Borrower or its subsidiaries
and (y) to be compensated by the Borrower and the East Borrower, on a current
cost-recovery basis, for the out-of-pocket costs and expenses (including
salaries, bonus and benefit costs) of providing such employees for the benefit
of the Borrower and the East Borrower, as the case may be, pursuant to the
Employee Cost Sharing Agreement.
"Employee Cost Sharing Agreement" means that certain Employee Cost
Sharing Agreement, dated as of December 31, 2003, by and among Dex Media
Services LLC, Parent, the Borrower and the East Borrower.
"Environmental Laws" means all applicable federal, state, and local
laws (including common law), regulations, rules, ordinances, codes, decrees,
judgments, directives, orders (including consent orders), and binding agreements
with any Governmental Authority in each case, relating to protection of the
environment, natural resources, human health and safety or the presence, Release
of, or exposure to, Hazardous Materials, or the generation, manufacture,
processing, distribution, use, treatment, storage, transport, recycling or
handling of, or the arrangement for such activities with respect to, Hazardous
Materials.
"Environmental Liability" means any liability, claim, action, suit,
judgment or order under or relating to any Environmental Law for any damages,
injunctive relief, losses, fines, penalties, fees, expenses (including
reasonable fees and expenses of attorneys and consultants) or costs, whether
contingent or otherwise, including those arising from or relating to: (a)
compliance or non-compliance with 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 of any
Hazardous Materials or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person of whatever
nature, and any warrants, options or other rights entitling the holder thereof
to purchase or acquire any of the foregoing.
"Equity Issuance" means the issuance by Parent, Holdings, the Borrower
or any Subsidiary of any Equity Interests, or the receipt by Parent, Holdings,
the Borrower or any Subsidiary of any capital contribution, other than (i) any
such issuance of Equity Interests to, or receipt of any such capital
contribution from, the Parent, Holdings, the Borrower or a Subsidiary, (ii) any
such issuance of Equity Interests or any such receipt of capital contributions
to the extent the Net Proceeds therefrom constitute Designated Equity Proceeds
and (iii) any issuance of Equity Interests to, or receipt of any capital
contributions from, members of management of the Parent or its subsidiaries, in
each case, either directly or indirectly through the Parent.
"Equity Proceeds" means the Net Proceeds received by the Parent or
Holdings from contributions to its common equity or from the issuance and sale
of its common Equity Interests or Non-Cash Pay Preferred Stock.
11
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excess Cash Flow" means, for any fiscal year, the sum (without
duplication) of:
(a) Consolidated Net Income for such fiscal year, adjusted to exclude
any gains or losses attributable to Prepayment Events; plus
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such Consolidated Net Income for such fiscal year;
plus
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such fiscal year plus (ii) the net amount, if any, by
which the deferred income taxes of Holdings, the Borrower and its
consolidated Subsidiaries increased during such fiscal year; minus
(d) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income for such fiscal year plus (ii) the amount, if any,
by which Net Working Capital increased during such fiscal year plus (iii)
the net amount, if any, by which the deferred income taxes of Holdings, the
Borrower and its consolidated Subsidiaries decreased during such fiscal
year; minus
(e) the sum of (i) Capital Expenditures for such fiscal year (except
to the extent attributable to the incurrence of Capital Lease Obligations
or otherwise financed by incurring Long-Term Indebtedness and except to the
extent made with Net Proceeds in respect of
12
Prepayment Events or Designated Equity Proceeds) plus (ii) cash
consideration paid during such fiscal year to make acquisitions or other
capital investments (other than Permitted Investments and except to the
extent financed by incurring Long-Term Indebtedness); minus
(f) the aggregate principal amount of Long-Term Indebtedness repaid or
prepaid by Holdings, the Borrower and its consolidated Subsidiaries during
such fiscal year, excluding (i) Indebtedness in respect of Revolving Loans
and Letters of Credit, (ii) Term Loans prepaid pursuant to Section 2.11(a),
(c), (d) or (e), and (iii) repayments or prepayments of Long-Term
Indebtedness financed by incurring other Long-Term Indebtedness; minus
(g) the aggregate amount of cash dividends paid by Holdings to the
Parent during such fiscal year pursuant to Section 6.08(a)(vii), Section
6.08(a)(viii) and Section 6.08(a)(x) minus
(h) the aggregate amount of cash restructuring and synergy charges
incurred during the fiscal periods ending on or prior to December 31, 2007
in connection with the Parent Acquisition in an aggregate amount not
exceeding $40,000,000.
"Excluded Capital Expenditures" means (a) Capital Expenditures of
Holdings, the Borrower and the Subsidiaries in a cumulative aggregate amount not
exceeding $40,000,000 required to be made under the West Acquisition Agreement
and any other agreements directly relating to the West Acquisition and (b)
Capital Expenditures of Holdings, the Borrower and the Subsidiaries in a
cumulative aggregate amount not exceeding $45,000,000 in respect of the IT
Upgrade Project.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.19(b)), any withholding tax that (i) is in effect and would
apply to amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Foreign Lender (or its assignor, if any) was entitled,
at the time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to any withholding tax
pursuant to Section 2.17(a), or (ii) is attributable to such Foreign Lender's
failure to comply with Section 2.17(e).
"Existing Notes" means the Existing Parent Notes, the Senior Unsecured
Notes and the Senior Subordinated Notes.
"Existing Parent Discount Notes" means 9.0% Senior Discount Notes of
Parent due 2013.
"Existing Parent Notes" means the Existing Parent Discount Notes and
the Existing Parent Senior Notes.
"Existing Parent Senior Notes" means 8.0% Senior Notes of Parent due
2013.
"Existing Parent Senior Notes Indenture" means the Indenture, dated as
of November 10, 2003, under which the Existing Parent Senior Notes were issued.
13
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Covenants" means the covenants set forth in Sections 6.15,
6.17 and 6.18.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Financing Transactions" means (a) the execution, delivery and
performance by the Parent and each Loan Party of the Loan Documents to which it
is to be a party, the borrowing of Loans, the use of the proceeds thereof and
the issuance of Letters of Credit hereunder and (b) the execution, delivery and
performance by the Parent of the New Parent Note Documents to which it is to be
a party, the issuance of the New Parent Notes and the use of the proceeds
thereof.
"Foreign Lender" means any Lender that is organized under the laws of
a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governing Board" means (a) the managing member or members or any
controlling committee of members of any Person, if such Person is a limited
liability company, (b) the board of directors of any Person, if such Person is a
corporation or (c) any similar governing body of any Person.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
14
"Guarantors" means Holdings and the Subsidiary Loan Parties.
"Hazardous Materials" means (i) any petroleum products or byproducts
and all other hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde
foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other
ozone-depleting substances; or (ii) any chemical, material, substance or waste
that is prohibited, limited or regulated by or pursuant to any applicable
Environmental Law.
"Headquarters Sale-Leaseback" means the sale and leaseback of the
Borrower's headquarters facility located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇.
"Holdings" means Dex Media West, Inc., a Delaware corporation, all of
the Equity Interests of which are on the Restatement Effective Date, owned by
the Parent.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale agreements relating to property acquired by such Person,
(d) all obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (e) all Indebtedness of others secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (f)
all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes and Other
Taxes.
"Information Memorandum" means the Confidential Information Memorandum
dated November 2005, as modified or supplemented prior to the Restatement
Effective Date, relating to the Borrower and the Parent Acquisition.
"Initial Base QPI" means the Qualifying Parent Indebtedness existing
on the Restatement Effective Date and the New Parent Notes.
"Installment Date" has the meaning assigned to such term in Section
2.10(a).
"Interest Coverage Ratio" means, on any date, the ratio of (a)
Consolidated EBITDA to (b) Consolidated Cash Interest Expense for the period of
four consecutive fiscal quarters of the Borrower ended on such date.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar
15
Loan, the last day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each day prior to the last day of
such Interest Period that occurs at intervals of three months' duration after
the first day of such Interest Period and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter (or nine or twelve months thereafter if, at the time of the relevant
Borrowing, all Lenders participating therein agree to make an interest period of
such duration available), as the Borrower may elect; provided, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Investment" means purchasing, holding or acquiring (including
pursuant to any merger with any Person that was not a Wholly Owned Subsidiary
prior to such merger) any Equity Interest, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, or making or permitting to exist any loans or advances (other
than commercially reasonable extensions of trade credit) to, guaranteeing any
obligations of, or making or permitting to exist any investment in, any other
Person, or purchasing or otherwise acquiring (in one transaction or a series of
transactions) any assets of any Person constituting a business unit. The amount,
as of any date of determination, of any Investment shall be the original cost of
such Investment (including any Indebtedness of a Person existing at the time
such Person becomes a Subsidiary in connection with any Investment and any
Indebtedness assumed in connection with any acquisition of assets), plus the
cost of all additions, as of such date, thereto and minus the amount, as of such
date, of any portion of such Investment repaid to the investor in cash or
property as a repayment of principal or a return of capital (including pursuant
to any sale or disposition of such Investment), as the case may be, but without
any other adjustments for increases or decreases in value, or write-ups,
write-downs or write-offs with respect to such Investment. In determining the
amount of any Investment or repayment involving a transfer of any property other
than cash, such property shall be valued at its fair market value at the time of
such transfer.
"Issuing Bank" means JPMorgan Chase Bank, N.A., in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.05(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"IT Upgrade Project" means the migration of the information technology
systems, software and platforms utilized by the Borrower and its Subsidiaries in
the operation of their businesses to a new platform.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
16
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 or Schedule I to
the Agreement to Amend and Restate and any other Person that shall have become a
party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and
Assumption. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower ended on such date.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate screen (or on
any successor or substitute page of such service, or any successor to or
substitute for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Document Obligations" has the meaning assigned to such term in
the Collateral Agreement.
"Loan Documents" means this Agreement and the Security Documents.
"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
For purposes of determining the Long-
17
Term Indebtedness of Holdings, the Borrower and the Subsidiaries, Indebtedness
of Holdings, the Borrower or any Subsidiary owed to Holdings, the Borrower or a
Subsidiary shall be excluded.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U of the Board.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, prospects, assets, liabilities, financial condition or
results of operations of Holdings, the Borrower and the Subsidiaries, taken as a
whole or (b) any material rights of or benefits available to the Lenders under
any of the Loan Documents.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of Holdings, the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $20,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of Holdings, the
Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that
Holdings, the Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.
"Material Subsidiary" means (i) any Securitization Vehicle and (ii)
any other Subsidiary, including its subsidiaries, which meets any of the
following conditions: (a) Holdings', the Borrower's and the other Subsidiaries'
investments in and advances to such Subsidiary exceed 5% of the consolidated
total assets of Holdings and the Subsidiaries as of the end of the most recently
completed fiscal year, (b) the consolidated assets of such Subsidiary exceed 5%
of the consolidated total assets of Holdings and the Subsidiaries as of the end
of the most recently completed fiscal year or (c) the consolidated pre-tax
income from continuing operations of such Subsidiary for the most recently ended
period of four consecutive fiscal quarters exceeds 5% of the consolidated
pre-tax income from continuing operations of Holdings and the Subsidiaries for
such period.
"Merger" has the meaning assigned to such term in the definition of
"Parent".
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
October 3, 2005, among Parent, RHD Corp. and Merger Sub.
"Merger Sub" has the meaning assigned to such term in the definition
of "Parent".
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgage" means any mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any real
property and improvements thereto to secure the Obligations delivered after the
Restatement Effective Date pursuant to Section 5.13. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and
improvements thereto owned by a Loan Party with respect to which a Mortgage is
granted pursuant to Section 5.13.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
received in respect of such event including (i) any cash received in respect of
any debt instrument or equity security received
18
as non-cash proceeds, but only as and when received, (ii) in the case of a
casualty, insurance proceeds, and (iii) in the case of a condemnation or similar
event, condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses (including underwriting discounts and
commissions and collection expenses) paid or payable by the Parent, Holdings,
the Borrower and the Subsidiaries to third parties (including Affiliates, if
permitted by Section 6.09) in connection with such event, (ii) in the case of a
sale, transfer or other disposition of an asset (including pursuant to a sale
and leaseback transaction or a casualty or a condemnation or similar
proceeding), the amount of all payments required to be made by the Parent,
Holdings, the Borrower and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans) secured by such asset or otherwise subject to
mandatory prepayment as a result of such event, and (iii) the amount of all
taxes paid (or reasonably estimated to be payable) by the Parent, Holdings, the
Borrower and the Subsidiaries (provided that such amounts withheld or estimated
for the payment of taxes shall, to the extent not utilized for the payment of
taxes, be deemed to be Net Proceeds received when such nonutilization is
determined), and the amount of any reserves established by the Parent, Holdings,
the Borrower and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case that are directly attributable to such
event (provided that any reversal of any such reserves will be deemed to be Net
Proceeds received at the time and in the amount of such reversal), in each case
as determined reasonably and in good faith by the chief financial officer of the
Borrower.
"Net Working Capital" means, at any date, (a) the consolidated current
assets of Holdings, the Borrower and its consolidated Subsidiaries as of such
date (excluding cash, Permitted Investments and current deferred income taxes)
minus (b) the consolidated current liabilities of Holdings, the Borrower and its
consolidated Subsidiaries as of such date (excluding current liabilities in
respect of Indebtedness and current deferred income taxes). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"New Parent Note Documents" means the indenture under which the New
Parent Notes are issued and all other instruments, agreements and other
documents evidencing or governing the New Parent Notes.
"New Parent Notes" means senior notes of Parent to be issued in
connection with the Parent Acquisition.
"Non-Cash Pay Preferred Stock" means preferred stock or other
preferred securities or membership interests of Holdings or the Parent which (i)
are not mandatorily redeemable, in whole or part, or required to be repurchased
or reacquired, in whole or part, by (A) Holdings or the Parent (unless such
redemption is required only if and to the extent then permitted by this
Agreement) or (B) the Borrower or any Subsidiary, and which do not require any
payment of cash dividends or distributions, in each case, prior to the date that
is six months after the Tranche B Maturity Date, (ii) are not secured by any
assets of the Parent, Holdings, the Borrower or any Subsidiary, (iii) are not
guaranteed by Holdings, the Borrower or any Subsidiary and (iv) are not
exchangeable or convertible into Indebtedness of the Parent, Holdings, the
Borrower or any Subsidiary (other than Parent Non-Cash Pay Debt) or any
preferred stock or other Equity Interest (other than common equity of the Parent
or Non-Cash Pay Preferred Stock).
"Non-Competition Agreement" means the Non-Competition and
Non-Solicitation Agreement dated as of November 8, 2002, among East Borrower,
the Borrower, Dex Holdings LLC, Qwest Corp., Qwest and Dex.
"Obligations" has the meaning assigned to such term in the Collateral
Agreement.
19
"Optional Repurchase" means, with respect to any outstanding
Indebtedness, any optional or voluntary repurchase, redemption or prepayment
made in cash of such Indebtedness, the related payment in cash of accrued
interest to the date of such repurchase, redemption or prepayment on the
principal amount of such Indebtedness repurchased, redeemed or prepaid, the
payment in cash of associated premiums (whether voluntary or mandatory) on such
principal amount and the cash payment of other fees and expenses incurred in
connection with such repurchase, redemption or prepayment.
"Original Closing Date" means September 9, 2003.
"Original Credit Agreement" means the Credit Agreement, dated as
September 9, 2003, as amended, among Parent, Holdings, the Borrower, JPMorgan
Chase Bank, N.A. (f/k/a JPMorgan Chase Bank) as administrative agent, and
others.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"Parent" means Dex Media, Inc., a Delaware corporation. Immediately
upon consummation of the Parent Acquisition, Parent will be merged (the
"Merger") with and into Forward Acquisition Corp., a wholly owned Subsidiary of
RHD Corp. ("Merger Sub"), and the term "Parent" will thereafter mean the
surviving entity in the Merger, which will change its name to Dex Media, Inc.
Upon consummation of the Merger, Parent will be a wholly owned direct Subsidiary
of RHD Corp.
"Parent Acquisition" means the acquisition of Parent by RHD Corp.
pursuant to the Merger Agreement, and the other transactions contemplated by the
Merger Agreement and the documents related thereto.
"Parent Acquisition Effective Date" means the date upon which the
Parent Acquisition shall have been consummated pursuant to the Merger Agreement;
provided that, no material provision of the Merger Agreement shall have been
waived, amended, supplemented or otherwise modified in a manner adverse to the
Lenders without the consent of the Administrative Agent.
"Parent Leverage Ratio" means the Consolidated Leverage Ratio (as such
term is defined in the Existing Parent Senior Notes Indenture as in effect on
the Restatement Effective Date without giving effect to any amendment or
modification thereto); provided however, that such leverage ratio shall be
computed without giving effect to the purchase method of accounting for the
purposes of this Agreement notwithstanding its computation for the purposes of
the Existing Parent Senior Notes Indenture.
"Parent Non-Cash Pay Debt" means Indebtedness of the Parent which (i)
does not mature or amortize, and is not mandatorily redeemable, in whole or in
part, or required to be repurchased or reacquired, in whole or in part, by the
Parent (unless such redemption is required only if and to the extent then
permitted by this Agreement), and which does not require any payment of cash
interest, in each case prior to the date that is six months after the Tranche B
Maturity Date, (ii) is not secured by any assets of the Parent, Holdings, the
Borrower or any Subsidiary, (iii) is not Guaranteed by Holdings, the Borrower or
any Subsidiary and (iv) is not exchangeable or convertible into Indebtedness of
Holdings, the Borrower or any Subsidiary or any preferred stock or other Equity
Interest (other than common equity of the Parent or Non-Cash Pay Preferred
Stock).
20
"Parent Pledge Agreement" means the Parent Pledge Agreement between
the Parent and the Agent, substantially in the form of Exhibit D.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit II
to the Collateral Agreement or any other form approved by the Collateral Agent.
"Permitted Acquisitions" means any acquisition (by merger,
consolidation or otherwise) by the Borrower or a Subsidiary Loan Party of all or
substantially all the assets of, or all the Equity Interests in, a Person or
division or line of business of a Person, if (a) immediately after giving effect
thereto, no Default has occurred and is continuing or would result therefrom,
(b) such acquired Person is organized under the laws of the United States of
America or any State thereof or the District of Columbia and substantially all
the business of such acquired Person or business consists of one or more
Permitted Businesses and not less than 80% of the consolidated gross operating
revenues of such acquired Person or business for the most recently ended period
of twelve months is derived from domestic operations in the United States of
America, (c) each Subsidiary resulting from such acquisition (and which survives
such acquisition) other than any Foreign Subsidiary, shall be a Subsidiary Loan
Party and at least 80% of the Equity Interests of each such Subsidiary shall be
owned directly by the Borrower and/or Subsidiary Loan Parties and shall have
been (or within 10 Business Days (or such longer period as may be acceptable to
the Agent) after such acquisition shall be) pledged pursuant to the Collateral
Agreement (subject to the limitations of the pledge of Equity Interests of
Foreign Subsidiaries set forth in the definition of "Collateral and Guarantee
Requirement"), (d) the Collateral and Guarantee Requirement shall have been (or
within 10 Business Days (or such longer period as may be acceptable to the
Agent) after such acquisition shall be) satisfied with respect to each such
Subsidiary, (e) the Borrower and the Subsidiaries are in compliance, on a pro
forma basis after giving effect to such acquisition, with the Financial
Covenants, recomputed as of the last day of the most recently ended fiscal
quarter of the Borrower for which financial statements are available, as if such
acquisition had occurred on the first day of the relevant period for testing
compliance and (f) the Borrower has delivered to the Agent an officer's
certificate to the effect set forth in clauses (a), (b), (c), (d) and (e) above,
together with all relevant financial information for the Person or assets
acquired and reasonably detailed calculations demonstrating satisfaction of the
requirement set forth in clause (e) above.
"Permitted Asset Swap" means any transfer of properties or assets by
the Borrower or any of its Subsidiaries in which at least 90% of the
consideration received by the transferor consists of properties or assets (other
than cash) that will be used in a Permitted Business; provided that (a) the
aggregate fair market value (as determined in good faith by the Governing Board
of the Borrower) of the property or assets being transferred by the Borrower or
such Subsidiary is not greater than the aggregate fair market value (as
determined in good faith by the Governing Board of the Borrower) of the property
or assets received by the Borrower or such Subsidiary in such exchange and (b)
the aggregate fair market value (as determined in good faith by the Governing
Board of the Borrower) of all property or assets transferred by the Borrower and
any of its Subsidiaries in any such transfer, together with the cumulative
aggregate fair market value of property or assets transferred in all prior
Permitted Asset Swaps, does not exceed 15% of the Borrower's consolidated net
revenues for the prior fiscal year.
"Permitted Business" means the telephone and internet directory
services businesses and businesses reasonably related, incidental or ancillary
thereto and in the case of any Securitization Vehicle, Securitizations.
21
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, landlord's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 60 days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments or attachments that do not
constitute an Event of Default under clause (j) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that are not substantial in amount and do not materially
detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Holdings Debt" means Indebtedness of Holdings which (i)
does not mature, and is not subject to mandatory repurchase, redemption or
amortization (other than pursuant to customary asset sale or change in control
provisions requiring redemption or repurchase only if and to the extent then
permitted by this Agreement), in each case, prior to the date that is six months
after the Tranche B Maturity Date, (ii) is not secured by any assets of
Holdings, the Borrower or any Subsidiary, (iii) is not Guaranteed by the
Borrower or any Subsidiary, (iv) is not exchangeable or convertible into
Indebtedness of Holdings (except other Permitted Holdings Debt), the Borrower or
any Subsidiary or any preferred stock or other Equity Interest (other than
common equity or Non-Cash Pay Preferred Stock of the Parent or Holdings,
provided that any such exchange or conversion, if effected, would not result in
a Change in Control) and (v) if subordinated, is subordinated to the Obligations
pursuant to a written instrument delivered, and reasonably satisfactory, to the
Administrative Agent or on terms substantially identical to (and no less
favorable in any significant respect to the Lenders than) the subordination
terms applicable to the Senior Subordinated Debt.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing or allowing for liquidation at the original par value at the
option of the holder within one year from the date of acquisition thereof;
(b) investments in commercial paper (other than commercial paper
issued by the Parent, Holdings, the Borrower or any of their Affiliates)
maturing within 270 days from the date of
22
acquisition thereof and having, at such date of acquisition, the highest
credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances, time
deposits or overnight bank deposits maturing within 180 days from the date
of acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of America or
any State thereof which has a combined capital and surplus and undivided
profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above; and
(e) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a-7 under the Investment Company
Act of 1940, (ii) are rated AAA by S&P and Aaa by Moody's and (iii) have
portfolio assets of at least $5,000,000,000.
"Permitted Subordinated Indebtedness" means Indebtedness of the
Borrower which (i) does not mature, and is not subject to mandatory repurchase,
redemption or amortization (other than pursuant to customary asset sale or
change in control provisions requiring redemption or repurchase only if and to
the extent then permitted by this Agreement), in each case, prior to the date
that is six months after the Tranche B Maturity Date, (ii) is not secured by any
assets of Holdings, the Borrower or any Subsidiary, (iii) is not exchangeable or
convertible into Indebtedness of Holdings, the Borrower or any Subsidiary or any
preferred stock or other Equity Interest (other than common equity or Non-Cash
Pay Preferred Stock of the Parent or Holdings, provided that any such exchange
or conversion, if effected, would not result in a Change in Control) and (iv)
is, together with any Guarantee thereof by any Subsidiary (a "Permitted
Subordinated Guarantee"), subordinated to the Obligations pursuant to a written
instrument delivered, and reasonably satisfactory, to the Administrative Agent
or on terms substantially identical to (and no less favorable in any significant
respect to the Lenders than) the subordination terms applicable to the Senior
Subordinated Debt.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prepayment Event" means any (a) Asset Disposition, (b) Equity
Issuance, (c) Debt Issuance or (d) Damages Event.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Forma Compliance" means, with respect to any event, that Holdings
and the Borrower are in pro forma compliance with the Financial Covenants
recomputed as if the event with respect to which Pro Forma Compliance is being
tested had occurred on the first day of each relevant
23
period with respect to which current compliance with such Financial Covenants
would be determined (for example, in the case of Financial Covenants based on
Consolidated EBITDA, as if such event had occurred on the first day of the four
fiscal quarter period ending on the last day of the most recent fiscal quarter
in respect of which financial statements have been delivered pursuant to Section
5.01(a) or (b)).
"Pro Forma Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date (giving effect to any incurrence or repayment of
Indebtedness on such date, including as a result of any acquisition to be
consummated on such date) to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower most recently ended on or prior to
such date (calculated by giving pro forma effect to any material acquisitions or
dispositions consummated after the commencement of such period or to be
consummated on the calculation date as if such acquisitions or dispositions had
been consummated on the first day of such period).
"Pro Forma RP Coverage Ratio" means, on the date of any Restricted
Payment proposed to be made pursuant to Section 6.08(a)(v)(B), the ratio of (a)
Consolidated EBITDA for the period of four consecutive fiscal quarters most
recently ended on or prior to such date minus the amount of such proposed
Restricted Payment and any other Restricted Payments made during such period
pursuant to Section 6.08(a)(v) to (b) Consolidated Cash Interest Expense for
such period.
"Publishing Agreement" means the Publishing Agreement dated as of
November 8, 2002, among Dex Holdings LLC, East Borrower, the Borrower and Qwest
Corp.
"Put Financing" means the financing required to fund any purchases of
Existing Notes required to be made by the Parent or the Borrower, as the case
may be, pursuant to the Change in Control Offers.
"Put Financing Indebtedness" means Indebtedness incurred pursuant to
any Put Financing.
"Qualifying Parent Indebtedness" means Indebtedness of the Parent,
other than Parent Non-Cash Pay Debt and any Put Financing, which (i) does not
mature or amortize, and is not mandatorily redeemable, in whole or part, or
required to be repurchased or reacquired, in whole or part (unless such
redemption is required only if and to the extent then permitted by this
Agreement), in each case prior to the date that is six months after the Tranche
B Maturity Date, (ii) is not secured by any assets of the Parent, Holdings, the
Borrower or any Subsidiary, (iii) is not Guaranteed by Holdings, the Borrower or
any Subsidiary, (iv) is not exchangeable or convertible into Indebtedness of
Holdings, the Borrower or any Subsidiary or any preferred stock or other Equity
Interest (other than common equity of the Parent or Non-Cash Pay Preferred
Stock) and (v) is issued solely for cash consideration and bears interest (which
may be payable in cash) at a fixed rate which represents a market rate of
interest for such Qualifying Parent Indebtedness at the time of its issuance.
"QPI Issuance Conditions" means, with respect to any issuance of
Qualifying Parent Indebtedness, other than Initial Base QPI, the following
conditions:
(a) at the time of such issuance, and after giving effect thereto, (i)
no Default shall have occurred and be continuing, (ii) Holdings and the
Borrower shall be in Pro Forma Compliance and (iii) Parent Leverage Ratio
shall not exceed 6.50 to 1.0; and
(b) at the time of such issuance, the Agent shall have received (i)
copies of all indentures and other instruments evidencing or governing such
Qualifying Parent Indebtedness, in each case certified by an executive
officer of the Parent as being true, complete and correct,
24
and (ii) a certificate of an executive officer of the Parent, dated the
date of such issuance, confirming satisfaction of the applicable conditions
set forth in clause (a) above and setting forth calculations, in reasonable
detail, of Pro Forma Compliance and of the Parent Leverage Ratio referred
to above.
"Qwest" means Qwest Communications International Inc., a Delaware
corporation.
"Qwest Corp." means Qwest Corporation, a Colorado corporation.
"Qwest Services" means Qwest Services Corporation, a Colorado
corporation.
"Refinancing Indebtedness" means Indebtedness issued or incurred
(including by means of the extension or renewal of existing Indebtedness) to
extend, renew or refinance existing Indebtedness ("Refinanced Debt"); provided
that (i) such extending, renewing or refinancing Indebtedness is in an original
aggregate principal amount not greater than the aggregate principal amount of,
and unpaid interest on, the Refinanced Debt plus the amount of any premiums paid
thereon and fees and expenses associated therewith, (ii) such Indebtedness has a
later maturity and a longer weighted average life than the Refinanced Debt,
(iii) such Indebtedness bears a market interest rate (as determined in good
faith by the board of directors of the Borrower) as of the time of its issuance
or incurrence, (iv) if the Refinanced Debt or any Guarantees thereof are
subordinated to the Obligations, such Indebtedness and Guarantees thereof are
subordinated to the Obligations on terms no less favorable in any significant
respect to the holders of the Obligations than the subordination terms of such
Refinanced Debt or Guarantees thereof (and no Loan Party that has not guaranteed
such Refinanced Debt Guarantees such Indebtedness), (v) such Indebtedness
contains covenants and events of default and is benefited by Guarantees (if any)
which, taken as a whole, are determined in good faith by the board of directors
of the Borrower not to be materially less favorable to the Lenders than the
covenants and events of default of or Guarantees (if any) in respect of such
Refinanced Debt, (vi) if such Refinanced Debt or any Guarantees thereof are
secured, such Indebtedness and any Guarantees thereof are either unsecured or
secured only by such assets as secured the Refinanced Debt and Guarantees
thereof, (vii) if such Refinanced Debt and any Guarantees thereof are unsecured,
such Indebtedness and Guarantees thereof are also unsecured, (viii) such
Indebtedness is issued only by the issuer of such Refinanced Indebtedness and
(ix) the proceeds of such Indebtedness are applied promptly (and in any event
within 45 days) after receipt thereof to the repayment of such Refinanced Debt.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the directors, officers, employees, agents, trustees,
Controlling Persons and advisors of such Person and of each of such Person's
Affiliates.
"Release" means any actual or threatened release, spill, emission,
leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal,
leaching or migration into or through the environment or within or upon any
building, structure, facility or fixture.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Required Percentage" has the meaning assigned to such term in Section
2.11(c).
25
"Requirement of Law" means, with respect to any Person, the charter
and by-laws or other organizational or governing documents of such Person, and
any law, rule or regulation (including Environmental Laws and ERISA) or order,
decree or other determination of an arbitrator or a court or other Governmental
Authority applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Restatement Effective Date" has the meaning assigned to such term in
the Agreement to Amend and Restate.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any Equity Interests in
Holdings, the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation,
termination or amendment of any Equity Interests in the Parent, Holdings, the
Borrower or any Subsidiary or of any option, warrant or other right to acquire
any such Equity Interests in the Parent, Holdings, the Borrower or any
Subsidiary.
"Revolving Availability Period" means the period from but excluding
the Original Closing Date to but excluding the earlier of the Revolving Maturity
Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit and Swingline Loans hereunder, expressed as
an amount representing the maximum aggregate amount of such Lender's Revolving
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The aggregate amount of the Lenders'
Revolving Commitments on June 16, 2005 was $100,000,000.
"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 LC Exposure and Swingline Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made or continued pursuant to clause (b)
of Section 2.01.
"Revolving Maturity Date" means September 9, 2009, or, if such day is
not a Business Day, the next preceding Business Day.
"RHD Allocable Share" means, with respect to any amount, 40% of such
amount.
"RHD Corp." means ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation, a Delaware corporation.
"RHD Inc." means ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., a Delaware corporation and a
wholly owned direct subsidiary of RHD Corp.
26
"RHD Leverage Ratio" means the Leverage Ratio (as such term is defined
in the Indenture, dated as of January 14, 2005, under which the 6 7/8% Senior
Notes of RHD Corp. due 2013 were issued, as in effect on the Restatement
Effective Date without giving effect to any amendment or modification thereto).
"S&P" means Standard & Poor's Ratings Group, Inc.
"Secured Parties" has the meaning assigned to such term in the
Collateral Agreement.
"Securitization" means any transaction or series of transactions
entered into by the Borrower or any Subsidiary pursuant to which the Borrower or
such Subsidiary, as the case may be, sells, conveys or otherwise transfers to a
Securitization Vehicle Securitization Assets of the Borrower or such Subsidiary
(or grants a security interest in such Securitization Assets transferred or
purported to be transferred to such Securitization Vehicle), and which
Securitization Vehicle finances the acquisition of such Securitization Assets
(i) with proceeds from the issuance of Third Party Interests, (ii) with Sellers'
Retained Interests or (iii) with proceeds from the sale or collection of
Securitization Assets previously purchased by such Securitization Vehicle.
"Securitization Assets" means any accounts receivable owed to or owned
by the Borrower or any Subsidiary (whether now existing or arising or acquired
in the future) arising in the ordinary course of business from the sale of goods
or services, all collateral securing such accounts receivable, all contracts and
contract rights and all guarantees or other obligations in respect of such
accounts receivable, all proceeds of such accounts receivable and other assets
(including contract rights) which are of the type customarily transferred in
connection with securitizations of accounts receivable and which are sold,
transferred or otherwise conveyed by the Borrower or a Subsidiary to a
Securitization Vehicle in connection with a Securitization permitted by Section
6.05.
"Securitization Vehicle" means a Person that is a direct wholly owned
Subsidiary or Unrestricted Subsidiary of the Borrower or of a Subsidiary of the
Borrower formed for the purpose of effecting one or more Securitizations to
which the Borrower or its Subsidiaries transfer Securitization Assets and which,
in connection therewith, issues Third Party Interests or Sellers' Retained
Interests; provided that such Securitization Vehicle shall engage in no business
other than the purchase of Securitization Assets pursuant to Securitizations
permitted by Section 6.05, the issuance of Third Party Interests or other
funding of such Securitizations and any activities reasonably related thereto,
and provided further that:
(x) no portion of the Indebtedness or any other obligations
(contingent or otherwise) of such Securitization Vehicle (i) is guaranteed
by the Borrower or any Subsidiary (excluding guarantees of obligations
(other than the principal of and interest on Indebtedness) pursuant to
Standard Securitization Undertakings), (ii) is recourse to or obligates the
Borrower or any other Subsidiary of the Borrower in any way other than
pursuant to Standard Securitization Undertakings, or (iii) subjects any
property or asset of the Borrower or any other Subsidiary of the Borrower,
directly or indirectly, contingently or otherwise, to the satisfaction
thereof, other than pursuant to Standard Securitization Undertakings;
(y) neither the Borrower nor any Subsidiary has any material contract,
agreement, arrangement or understanding with such Securitization Vehicle
other than on terms which the Borrower reasonably believes to be no less
favorable to the Borrower or such Subsidiary than those that might be
obtained at the time from Persons that are not Affiliates of the Borrower;
and
27
(z) neither the Borrower nor any Subsidiary has any obligation to
maintain or preserve such Securitization Vehicle's financial condition or
cause such Securitization Vehicle to achieve certain levels of operating
results.
"Security Documents" means the Collateral Agreement, the Parent Pledge
Agreement, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.12 or 5.13 or pursuant
to the Collateral Agreement to secure any of the Obligations.
"Security Interests" has the meaning assigned to such term in the
Collateral Agreement.
"Sellers' Retained Interests" means the debt or equity interests held
by the Borrower or any Subsidiary in a Securitization Vehicle to which
Securitization Assets have been transferred in a Securitization permitted by
Section 6.05, including any such debt or equity received in consideration for
the Securitization Assets transferred.
"Senior Indebtedness" means at any time, Total Indebtedness at such
time, except (to the extent counted as Total Indebtedness) the Senior
Subordinated Debt, Permitted Subordinated Debt, Permitted Holdings Debt and any
other Indebtedness of Holdings not Guaranteed by the Borrower or any Subsidiary.
"Senior Secured Indebtedness" means at any time, the principal amount
of all the Obligations and all other Senior Indebtedness, other than unsecured
Senior Indebtedness, in each case included in Total Indebtedness at such time.
"Senior Secured Leverage Ratio" means, on any date, the ratio of (a)
Senior Secured Indebtedness as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters of the Borrower most recently ended
on or prior to such date.
"Senior Subordinated Debt" means the Indebtedness represented by the
Senior Subordinated Notes (including the Note Guarantees, Exchange Notes (each
as defined in the Senior Subordinated Debt Documents), guarantees of Exchange
Notes and any replacement Exchange Notes).
"Senior Subordinated Debt Documents" means the indenture under which
the Senior Subordinated Debt was issued and all other instruments, agreements
and other documents evidencing or governing the Senior Subordinated Debt or
providing for any Guarantee or other right in respect thereof.
"Senior Subordinated Notes" means the Borrower's 9-7/8% Senior
Subordinated Notes due 2013 in an initial aggregate principal amount of
$780,000,000.
"Senior Unsecured Debt" means the Indebtedness represented by the
Senior Unsecured Notes (including the Note Guarantees, Exchange Notes (each as
defined in the Senior Unsecured Debt Documents), guarantees of Exchange Notes
and any replacement Exchange Notes).
"Senior Unsecured Debt Documents" means the indentures under which the
Senior Unsecured Debt was issued and all other instruments, agreements and other
documents evidencing or governing the Senior Unsecured Debt or providing for any
Guarantee or other right in respect thereof.
"Senior Unsecured Notes" means the Borrower's (a) 8-1/2% Senior Notes
due 2010 in an initial aggregate principal amount of $385,000,000 and (b) 5-7/8
Senior Notes due 2011 in an initial aggregate principal amount of $300,000,000.
28
"Shared Services" means the centralized services utilizing the Shared
Services Assets and Operations which are provided by the Parent or RHD Corp., as
the case may be, or any of their respective subsidiaries to Permitted Businesses
conducted by the Borrower and its Subsidiaries, the East Borrower and its
subsidiaries (including any "unrestricted subsidiaries" permitted by the East
Credit Facilities) and/or Unrestricted Subsidiaries in accordance with the
provisions of Section 6.22(c).
"Shared Services Assets and Operations" means (a) the information
technology assets and related operations and (b) the general administrative and
corporate level services and related assets, in each case that are owned and
operated by the Parent or RHD Corp., as the case may be, or any of their
respective subsidiaries and used to provide centralized services with respect to
Permitted Businesses conducted by (i) RHD Corp. and its subsidiaries, (ii) the
Borrower and its subsidiaries, (iii) the East Borrower and its subsidiaries
(including any unrestricted subsidiaries permitted by the East Credit
Facilities) and (iv) any Unrestricted Subsidiaries permitted hereunder.
"Shared Services Payments" means payments by the Borrower and its
Subsidiaries in cash to the Parent or RHD Corp., as the case may be, in respect
of the provision by the Parent or RHD Corp. or any of their respective
subsidiaries (other than Holdings, RHD Inc. or any of their respective
subsidiaries) to the Borrower and its subsidiaries of Shared Services; provided,
however, that all such payments shall be made solely to reimburse the Parent or
RHD Corp., as the case may be, for those actual cash costs (including accrued
costs payable by the Parent, RHD Corp. or any of their respective subsidiaries
(other than Holdings, RHD Inc. or any of their respective subsidiaries) in cash
within the 30-day period after receipt of a Shared Services Payment) associated
with the Shared Services Assets and Operations that are directly attributable or
otherwise allocable to the provision of such services to the Borrower and its
Subsidiaries (it being understood that to the extent that any of the costs of
such services cannot be clearly allocated as between the Borrower and its
Subsidiaries, on the one hand, and the East Borrower and its subsidiaries, RHD
Inc. and its subsidiaries or Unrestricted Subsidiaries, on the other hand, such
costs shall be allocated on a fair and reasonable basis).
"Standard Securitization Undertakings" means representations,
warranties, covenants, indemnities and guarantees of performance entered into by
the Borrower or any Subsidiary which the Borrower has determined in good faith
to be customary in a Securitization, including those relating to the servicing
of the assets of a Securitization Vehicle.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such
29
date, owned, Controlled or held by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means (a) any subsidiary of Holdings on the Restatement
Effective Date, including the Borrower, and (b) each subsidiary of Holdings
organized or acquired after the Restatement Effective Date that has not been
designated as an Unrestricted Subsidiary in accordance with the provisions of
Section 6.23.
"Subsidiary Loan Party" means any Subsidiary other than the Borrower
that is not (x) a Foreign Subsidiary or (y) a Securitization Vehicle.
"Swap Agreement" means any agreement with respect to any swap,
forward, future or derivative transaction or option or similar agreement
involving, or settled by reference to, one or more rates, currencies,
commodities, equity or debt instruments or securities, or economic, financial or
pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or any combination of these transactions; provided that
no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the total
Swingline Exposure at such time.
"Swingline Lender" means JPMorgan Chase Bank, N.A. in its capacity as
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Tax Payments" means payments in cash in respect of Federal, state and
local (i) income, franchise and other similar taxes and assessments imposed on
(or measured by) net income which are paid or payable by or on behalf of the
Borrower and its Subsidiaries or which are directly attributable to (or arising
as a result of) the operations of the Borrower and its Subsidiaries and (ii)
taxes which are not determined by reference to income, but which are imposed on
a direct or indirect owner of the Borrower as a result of such owner's ownership
of the equity of the Borrower (such taxes in clauses (i) and (ii), "Applicable
Taxes").
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means Tranche A Term Loans, Tranche B Term Loans and
Tranche B-1 Term Loans.
"Territories" means the states of Arizona, Idaho, Montana, Oregon,
Utah, Washington and Wyoming.
"Third Party Interests" means, with respect to any Securitization,
notes, bonds or other debt instruments, beneficial interests in a trust,
undivided ownership interests in receivables or other securities issued for cash
consideration by the relevant Securitization Vehicle to banks, financing
conduits, investors or other financing sources (other than Holdings and the
Subsidiaries) the proceeds of which are used to finance, in whole or in part,
the purchase by such Securitization Vehicle of Securitization Assets in a
Securitization. The amount of any Third Party Interests shall be deemed to
30
equal the aggregate principal, stated or invested amount of such Third Party
Interests which are outstanding at such time.
"Total Indebtedness" means, as of any date, the aggregate principal
amount of Indebtedness of Holdings, the Borrower and the Subsidiaries
outstanding as of such date, in the amount that would be reflected on a balance
sheet prepared as of such date on a consolidated basis in accordance with GAAP,
provided that, the amount of such Indebtedness shall be without regard to the
effects of purchase method of accounting requiring that the amount of such
Indebtedness be valued at its fair market value instead of its outstanding
principal amount.
"Tranche A Lender" means a Lender with an outstanding Tranche A Term
Loan.
"Tranche A Maturity Date" means September 9, 2009, or, if such day is
not a Business Day, the next preceding Business Day.
"Tranche A Term Loan" means a "Tranche A Term Loan" outstanding
hereunder prior to the Restatement Effective Date and continued as such pursuant
to clause (i) of Section 2.01(a).
"Tranche B Lender" means a Lender with an outstanding Tranche B Term
Loan.
"Tranche B Maturity Date" means March 9, 2010, or, if such day is not
a Business Day, the next preceding Business Day.
"Tranche B Term Loan" means a "Tranche B Term Loan" outstanding
hereunder prior to the Restatement Effective Date and continued as such pursuant
to clause (i) of Section 2.01(a).
"Tranche B-1 Commitment" means, with respect to each Lender, the
commitment of such Lender, if any, to make Tranche B-1 Term Loans pursuant to
clause (ii) of Section 2.01(a) during the Tranche B-1 Term Loan Availability
Period. The amount of each Lender's Tranche B-1 Commitment is set forth on
Schedule I to the Agreement to Amend and Restate.
"Tranche B-1 Lender" means a Lender with a Tranche B-1 Commitment or
an outstanding Tranche B-1 Term Loan.
"Tranche B-1 Maturity Date" means March 9, 2010, or, if such day is
not a Business Day, the next preceding Business Day.
"Tranche B-1 Term Loan" means a Tranche B-1 Term Loan made during the
Tranche B-1 Term Loan Availability Period pursuant to clause (ii) of Section
2.01(a).
"Tranche B-1 Term Loan Availability Period": the period from and
including the Restatement Effective Date to but excluding the date that is 45
days following the Restatement Effective Date.
"Transactions" means the Parent Acquisition and the Financing
Transactions.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
31
"Unrestricted Subsidiary" means any subsidiary of Holdings that has
been designated as an Unrestricted Subsidiary by Holdings pursuant to and in
compliance with Section 6.23. No Unrestricted Subsidiary may own any Equity
Interests of the Borrower, a Subsidiary or East Holdings or any of its
subsidiaries (other than an "unrestricted subsidiary" of East Holdings pursuant
to the credit agreement relating to the East Credit Facilities).
"West Acquisition" means the acquisition by the Borrower pursuant to
the West Acquisition Agreement of all the Equity Interests of GPP LLC, a
Delaware limited liability company, and the other transactions contemplated by
the West Acquisition Agreement and the documents related thereto. Immediately
after such acquisition of GPP LLC, the Borrower was merged with and into GPP
LLC, which changed its name to "Dex Media West LLC".
"West Acquisition Agreement" means the Purchase Agreement dated as of
August 19, 2002, among Dex, Qwest Services, Qwest and Dex Holdings LLC, as
amended by an amendment dated as of September 9, 2003.
"West Acquisition Agreement Recovery" means the receipt by the Parent,
Holdings, the Borrower or any Affiliate of the Parent of any payment made by
Qwest Corp., Qwest or any Affiliate thereof (x)(i) constituting damages paid
pursuant to, or as a result of the breach or asserted breach of obligations
under, the West Acquisition Agreement or (ii) representing amounts paid in
settlement or compromise of claims that Qwest Corp., Qwest or any Affiliate
thereof has breached its obligations under the West Acquisition Agreement,
except, in each case, any such receipt of a payment that constitutes a Damages
Event, or (y) constituting a post-closing purchase price adjustment under the
West Acquisition Agreement.
"West Allocable Share" means, with respect to any amount, 58% of such
amount.
"West Entities" means Holdings, the Borrower and their subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.02 Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
Section 1.03 Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
32
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
Section 1.04 Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith. Any reference made
in this Agreement or any other Loan Document to any consolidated financial
statement or statements of Holdings, the Borrower and the Subsidiaries means
such financial statement or statements prepared on a combined basis for
Holdings, the Borrower and the Subsidiaries pursuant to GAAP and accounting for
any Unrestricted Subsidiary on an unconsolidated basis as investments, not
utilizing the equity method.
ARTICLE II
THE CREDITS
Section 2.01 Commitments. (a) Subject to the terms and conditions set
forth herein, (i) on the Restatement Effective Date, each Lender agrees to
continue any outstanding Term Loans, if any, made by it under the Original
Credit Agreement, each continued Term Loan to constitute a Tranche A Term Loan
or Tranche B Term Loan to the extent so constituted under the Original Credit
Agreement and to remain subject to the same Interest Period applicable to them
immediately prior to the Restatement Effective Date and/or (ii) on and after the
Restatement Effective Date, each Tranche B-1 Lender agrees to make Tranche B-1
Term Loans to the Borrower during the Tranche B-1 Term Loan Availability Period
in not more than three draws in an aggregate amount not to exceed for all such
draws the respective amount set forth opposite its name on Schedule I to the
Agreement to Amend and Restate under the heading "Tranche B-1 Commitment".
(b) Subject to the terms and conditions set forth herein, each
Lender agrees to make (or, with respect to Revolving Loans outstanding on
the Restatement Effective Date, continue) Revolving Loans to the Borrower
from time to time during the Revolving Availability Period in an aggregate
principal amount that will not (after giving effect to any concurrent use
of the proceeds thereof to repay Swingline Loans or LC Disbursements)
result in such Lender's Revolving Exposure exceeding such Lender's
Revolving Commitment. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
(c) Amounts repaid in respect of Term Loans may not be
reborrowed.
Section 2.02 Loans and Borrowings. (a) Each Loan (other than a
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
33
(b) Subject to Section 2.14, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as
the Borrower may request in accordance herewith. Each Swingline Loan shall
be an ABR Loan.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000 and not less
than $5,000,000; provided that an ABR Revolving Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e). Each Swingline Loan
shall be in an amount that is an integral multiple of $1,000,000.
Borrowings of more than one Type and Class may be outstanding at the same
time; provided that there shall not at any time be more than a total of 25
Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Revolving Maturity Date, Tranche A Maturity
Date, Tranche B Maturity Date or Tranche B-1 Maturity Date, as applicable.
Section 2.03 Requests for Borrowings. (a) To request funding of a
Revolving Borrowing or Term Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 2:00 p.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 2:00 p.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that any such notice of an
ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing, Tranche A Term Borrowing, Tranche B Term Borrowing or
Tranche B-1 Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) subject to the proviso to the fourth sentence of Section
2.02(c), whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving
34
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender
of the details thereof and of the amount of such Lender's Loan to be made as
part of the requested Borrowing.
Section 2.04 Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Revolving Availability Period, in an
aggregate principal amount at any time outstanding that will not result in (i)
the aggregate principal amount of outstanding Swingline Loans exceeding
$5,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments; provided that the Swingline Lender shall not be required
to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy),
not later than 2:00 p.m., New York City time, on the day of a proposed
Swingline Loan. Each such notice shall be irrevocable and shall specify the
requested date (which shall be a Business Day) and amount of the requested
Swingline Loan. The Administrative Agent will promptly advise the Swingline
Lender of any such notice received from the Borrower. The Swingline Lender
shall make each Swingline Loan available to the Borrower by means of a
credit to the general deposit account of the Borrower with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e), by
remittance to the Issuing Bank) by 3:00 p.m., New York City time, on the
requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 12:00 noon, New York City time, on any
Business Day require the Revolving Lenders to acquire participations on
such Business Day in all or a portion of the Swingline Loans outstanding.
Such notice shall specify the aggregate amount of Swingline Loans in which
Revolving Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Revolving Lender,
specifying in such notice such Lender's Applicable Percentage of such
Swingline Loan or Loans. Each Revolving Lender hereby absolutely and
unconditionally agrees, upon receipt of notice as provided above, to pay to
the Administrative Agent, for the account of the Swingline Lender, such
Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations in Swingline Loans pursuant to this paragraph is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever;
provided that no Lender shall be required to acquire a participation in any
Swingline Loan to the extent that doing so would cause the Revolving
Exposure of such Lender to exceed such Lender's Revolving Commitment. Each
Revolving Lender shall comply with its obligation under this paragraph by
wire transfer of immediately available funds, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and
Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
the Revolving Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Revolving
Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph,
and thereafter payments in respect of such Swingline Loan shall be made to
the Administrative Agent and not to the Swingline Lender. Any amounts
received by the Swingline Lender from the Borrower (or other party on
behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall
be promptly remitted to the Administrative Agent; any such amounts received
by the
35
Administrative Agent shall be promptly remitted by the Administrative Agent
to the Revolving Lenders that shall have made their payments pursuant to
this paragraph and to the Swingline Lender, as their interests may appear;
provided that any such payment so remitted shall be repaid to the Swingline
Lender or to the Administrative Agent, as applicable, if and to the extent
such payment is required to be refunded to the Borrower for any reason. The
purchase of participations in a Swingline Loan pursuant to this paragraph
shall not relieve the Borrower of any default in the payment thereof.
Section 2.05 Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit for its own account or the account of any Subsidiary, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank on the
Original Closing Date and, at any time and from time to time thereafter during
the Revolving Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the
Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably
in advance of the requested date of issuance, amendment, renewal or
extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which
shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount
of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew
or extend such Letter of Credit. If requested by the Issuing Bank, the
Borrower also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit.
A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after
giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $15,000,000 and (ii) the total Revolving
Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date one year
after the date of the issuance of such Letter of Credit (or, in the case of
any renewal or extension thereof, one year after such renewal or extension)
and (ii) the date that is five Business Days prior to the Revolving
Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving
Lender hereby acquires from the Issuing Bank, a participation in such
Letter of Credit equal to such Lender's Applicable Percentage of the
aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative
Agent, for the account of the Issuing Bank, such Lender's Applicable
Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section, or of any reimbursement payment required to be refunded to
the Borrower for any reason. Each Revolving Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in
respect of Letters of Credit is absolute and unconditional and shall not be
affected by any
36
circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment
shall be made without any offset, abatement, withholding or reduction
whatsoever; provided that no Lender shall be required to acquire a
participation in any Letter of Credit to the extent that doing so would
cause the Revolving Exposure of such Lender to exceed such Lender's
Revolving Commitment.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal
to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., New York City
time, on such date, or, if such notice has not been received by the
Borrower prior to such time on such date, then not later than 12:00 noon,
New York City time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 10:00 a.m., New York City time,
on the day of receipt, or (ii) the Business Day immediately following the
day that the Borrower receives such notice, if such notice is not received
prior to such time on the day of receipt; provided that (whether or not the
conditions in Section 4.01 are satisfied or a Default exists) each of the
Administrative Agent and the Borrower shall have the absolute and
unconditional right to require that such payment be financed with an ABR
Revolving Borrowing or Swingline Loan in an equivalent amount and, to the
extent so financed, the Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Loan. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Lender of the applicable
LC Disbursement, the payment then due from the Borrower in respect thereof
and such Lender's Applicable Percentage thereof. Promptly following receipt
of such notice, each Revolving Lender shall pay to the Administrative Agent
its Applicable Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Revolving Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent
of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the Issuing Bank or,
to the extent that Revolving Lenders have made payments pursuant to this
paragraph to reimburse the Issuing Bank, then to such Lenders and the
Issuing Bank as their interests may appear. Any payment made by a Revolving
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Revolving Loans or a Swingline
Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse
LC Disbursements as provided in paragraph (e) of this Section shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability
of any Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a Letter of
Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply strictly with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Borrower's obligations hereunder.
None of the Administrative Agent, the Lenders, the Issuing Bank or any of
their Related Parties shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter
37
of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under
or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms
or any consequence arising from causes beyond the control of the Issuing
Bank; provided that the provisions of this Section 2.05(f) shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank's failure to exercise care when determining whether drafts
and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of
gross negligence or wilful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank
shall be deemed to have exercised care in each such determination. In
furtherance of the foregoing and without limiting the generality thereof,
the parties agree that, with respect to documents presented which appear on
their face to be in substantial compliance with the terms of a Letter of
Credit, the Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether
the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
relieve the Borrower of its obligation to reimburse the Issuing Bank and
the Revolving Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
Borrower reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided that, if the Borrower fails to
reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.13(c) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing
Bank. The Administrative Agent shall notify the Lenders of any such
replacement of the Issuing Bank. At the time any such replacement shall
become effective, the Borrower shall pay all unpaid fees accrued for the
account of the replaced Issuing Bank pursuant to Section 2.12(b). From and
after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of the Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter
and (ii) references herein to the term "Issuing Bank" shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such
successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced Issuing
Bank shall remain a party hereto and shall continue to have all the
38
rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not
be required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default under clauses
(a), (b), (h) or (i) of Article VII shall occur and be continuing or if the
Loans have been accelerated pursuant to Article VII as a result of any
other Event of Default, on the Business Day that the Borrower receives
notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure) demanding
the deposit of cash collateral pursuant to this paragraph, the Borrower
shall deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article VII. The Borrower also
shall deposit cash collateral pursuant to this paragraph as and to the
extent required by Section 2.11(b). Each such deposit under this Section or
Section 2.11(b) shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under this
Agreement, and the Borrower hereby grants to the Agent, for the benefit of
the Secured Parties, a security interest in all funds and investments from
time to time in such account, and in the proceeds thereof, to secure the
Obligations. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied
by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not
so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the
maturity of the Loans has been accelerated (but subject to the consent of
Revolving Lenders with LC Exposure representing greater than 50% of the
total LC Exposure), be applied to satisfy other obligations of the Borrower
under this Agreement. If the Borrower is required to provide an amount of
cash collateral under this Section 2.05(j) as a result of the occurrence of
an Event of Default specified above, such amount (to the extent not applied
as aforesaid) shall be returned to the Borrower within three Business Days
after the applicable Events of Default have been cured or waived. If the
Borrower is required to provide an amount of cash collateral hereunder
pursuant to Section 2.11(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower as and to the extent that,
after giving effect to such return, the Borrower would remain in compliance
with Section 2.11(b) and no Default shall have occurred and be continuing.
Section 2.06 Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders; provided that Swingline Loans shall be made as provided
in Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with the Administrative Agent in New York
City and designated by the Borrower in the applicable Borrowing Request;
provided that ABR Revolving Loans and Swingline Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
39
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan included in such Borrowing.
Section 2.07 Interest Elections. (a) Each Revolving Borrowing and Term
Borrowing initially shall be of the Type specified in the applicable Borrowing
Request and, in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
40
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing then, so long
as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end
of the Interest Period applicable thereto.
Section 2.08 Termination and Reduction of Commitments. (a) To the
extent not previously terminated, the Tranche B-1 Commitments shall terminate at
5:00 p.m., New York City time, on June 30, 2006, and the Revolving Commitments
shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time, without premium or penalty,
terminate, or from time to time reduce, the Commitments of any Class;
provided that (i) each reduction of the Commitments of any Class shall be
in an amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 and (ii) the Borrower shall not terminate or reduce the
Revolving Commitments if, after giving effect to any concurrent prepayment
of the Revolving Loans in accordance with Section 2.11, the sum of the
Revolving Exposures would exceed the total Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Revolving Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments of any Class shall be
permanent. Each reduction of the Commitments of any Class shall be made
ratably among the Lenders in accordance with their respective Commitments
of such Class.
Section 2.09 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
of such Lender on the Revolving Maturity Date, (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each Term
Loan of such Lender as provided in Section 2.10 and (iii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Revolving Maturity Date and the first date after such Swingline Loan is made
that is the 15th or last day of a calendar month and is at least two Business
Days after such Swingline Loan is made; provided that on each date that a
Revolving Borrowing is made, the Borrower shall repay all Swingline Loans that
were outstanding on the date such Borrowing was requested.
41
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder for the account of the Lenders and
each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that
the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order
of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form reasonably satisfactory to the
Administrative Agent. Such promissory note shall state that it is subject
to the provisions of this Agreement. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more
promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
Section 2.10 Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (e) of this Section 2.10, the Borrower shall repay Tranche
A Term Borrowings on each date set forth below in an amount equal to the
percentage of the aggregate principal amount of the Tranche A Loans continued on
the Restatement Effective Date set forth opposite such date (each such date
being called an "Installment Date"):
Percentage of
Principal Amount
Date to be Repaid
---- ----------------
March 31, 2006 4.49097%
June 30, 2006 4.49097%
September 30, 2006 4.49097%
December 31, 2006 5.98804%
March 31, 2007 5.98804%
June 30, 2007 5.98804%
September 30, 2007 5.98804%
December 31, 2007 6.28741%
March 31, 2008 6.28741%
June 30, 2008 6.28741%
September 30, 2008 6.28741%
December 31, 2008 9.35632%
March 31, 2009 9.35632%
June 30, 2009 9.35632%
Tranche A Maturity Date 9.35632%
42
(b) Subject to adjustment pursuant to paragraph (e) of this
Section 2.10, the Borrower shall repay Tranche B Borrowings on each date
set forth below in an amount equal to the percentage of the aggregate
principal amount of Tranche B Term Loans continued on the Restatement
Effective Date set forth opposite such date:
Percentage of
Principal Amount
Date to be Repaid
---- ----------------
March 31, 2006 1.06209%
June 30, 2006 1.06209%
September 30, 2006 1.06209%
December 31, 2006 1.06209%
March 31, 2007 1.06209%
June 30, 2007 1.06209%
September 30, 2007 1.06209%
December 31, 2007 1.06209%
March 31, 2008 1.06209%
June 30, 2008 1.06209%
September 30, 2008 1.06209%
December 31, 2008 1.06209%
March 31, 2009 1.06209%
June 30, 2009 20.22059%
September 30, 2009 20.22059%
December 31, 2009 22.87582%
Tranche B Maturity Date 22.87582%
(c) Subject to adjustment pursuant to paragraph (e) of this
Section 2.10, the Borrower shall repay Tranche B-1 Borrowings on each date
set forth below in an amount equal to the percentage of the aggregate
principal amount of Tranche B-1 Term Loans made during the Tranche B-1 Term
Loan Availability Period set forth opposite such date:
Percentage of
Principal Amount
Date to be Repaid
---- ----------------
March 31, 2006 1.06209%
June 30, 2006 1.06209%
September 30, 2006 1.06209%
December 31, 2006 1.06209%
March 31, 2007 1.06209%
June 30, 2007 1.06209%
September 30, 2007 1.06209%
December 31, 2007 1.06209%
March 31, 2008 1.06209%
June 30, 2008 1.06209%
September 30, 2008 1.06209%
December 31, 2008 1.06209%
March 31, 2009 1.06209%
43
June 30, 2009 20.22059%
September 30, 2009 20.22059%
December 31, 2009 22.87582%
Tranche B-1 Maturity
Date 22.87582%
(d) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Maturity Date, (ii) all
Tranche B Term Loans shall be due and payable on the Tranche B Maturity
Date and (iii) all Tranche B-1 Term Loans shall be due and payable on the
Tranche B-1 Maturity Date.
(e) (i) Any mandatory or optional prepayment of a Tranche A Term
Borrowing shall be applied first to reduce the first scheduled payment to
become due under Section 2.10(a) and, thereafter, to reduce subsequent
scheduled repayments of Tranche A Term Borrowings to be made pursuant to
Section 2.10(a) ratably, (ii) any mandatory or optional prepayment of a
Tranche B Term Borrowing shall be applied to reduce the subsequent
scheduled payments of the Tranche B Term Borrowings to be made pursuant to
Section 2.10(b) ratably and (iii) any mandatory or optional prepayment of a
Tranche B-1 Term Borrowing shall be applied to reduce the subsequent
scheduled payments of the Tranche B-1 Term Borrowings to be made pursuant
to Section 2.10(c) ratably.
(f) Prior to any repayment of any Term Borrowings of either Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00
a.m., New York City time, three Business Days before the scheduled date of
such repayment. Each repayment of a Borrowing shall be applied ratably to
the Loans included in the repaid Borrowing. Repayments of Term Borrowings
shall be accompanied by accrued interest on the amount repaid.
Section 2.11 Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, without premium or penalty (but subject to Section 2.16), in an aggregate
principal amount that is an integral multiple of $1,000,000 and not less than
$5,000,000 (or $500,000 or more, in the case of Swingline Loans) or, if less,
the amount outstanding, subject to the requirements of this Section.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the total Revolving Commitments, the Borrower
shall prepay Revolving Borrowings or Swingline Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount
equal to such excess.
(c) In the event and on each occasion that any Net Proceeds
(other than any Net Proceeds from (i) the issuance of the New Parent Notes
and (ii) any Put Financing) are received by or on behalf of the Parent,
Holdings, the Borrower or any Subsidiary in respect of any Prepayment
Event, the Borrower shall, not later than the Business Day next after the
date on which such Net Proceeds are received, prepay Term Borrowings in an
aggregate amount equal to the Required Percentage of such Net Proceeds or,
in the case of an Equity Issuance by the Parent or a Damages Event, the
Required Percentage of the Allocable Net Proceeds of such Prepayment Event;
provided that, in the case of any Asset Disposition, if the Borrower shall
deliver to the Administrative Agent a certificate of a Financial Officer to
the effect that the Borrower or a Subsidiary intends to apply the Net
Proceeds from such event (or a portion thereof specified in such
certificate), within 365 days after receipt of such Net Proceeds, to
acquire real property, equipment or other assets to be used in the business
of the Borrower or such Subsidiaries or to fund a Permitted Acquisition in
accordance with the terms of Section 6.04, and certifying that no Default
has occurred and is continuing, then no prepayment shall be required
44
pursuant to this paragraph in respect of the Net Proceeds in respect of
such event (or the portion of such Net Proceeds specified in such
certificate, if applicable) except to the extent of any such Net Proceeds
therefrom that have not been so applied by the end of such 365-day period,
at which time a prepayment shall be required in an amount equal to such Net
Proceeds that have not been so applied. For purposes hereof, "Required
Percentage" shall mean: (i) in the case of an Asset Disposition or a
Damages Event, 100%; (ii) in the case of a Debt Issuance, (A) if on the
date of the relevant issuance, the Pro Forma Leverage Ratio is greater than
4.0 to 1.0, 100% or (B) if on the date of the relevant issuance, the Pro
Forma Leverage Ratio is less than or equal to 4.0 to 1.0, 0% (it being
understood that a portion of such Net Proceeds from a Debt Issuance may be
applied so as to reduce such Pro Forma Leverage Ratio to less than 4.0 to
1.0, and that the Required Percentage for the remainder of such Net
Proceeds shall be 0%); and (iii) in the case of an Equity Issuance, (A) if
on the date of the relevant prepayment, the Pro Forma Leverage Ratio is
greater than 4.0 to 1.0, 50% or (B) on the date of the relevant prepayment,
the Pro Forma Leverage Ratio is less than or equal to 4.0 to 1.0, 0% (it
being understood that a portion of such Net Proceeds from an Equity
Issuance may be applied so as to reduce such Pro Forma Leverage Ratio to
less than 4.0 to 1.0, and that the Required Percentage for the remainder of
such Net Proceeds shall be 0%).
(d) Following the end of each fiscal year of the Borrower,
commencing with the fiscal year ending December 31, 2004, the Borrower will
prepay Term Borrowings in an aggregate amount equal to (i) 50% of Excess
Cash Flow for such fiscal year less (ii) any voluntary prepayments of Term
Loans made pursuant to Section 2.11(a) during such fiscal year; provided
that, with respect to each such fiscal year ending on or after December 31,
2005, no such prepayment of Term Borrowings shall be required if the
Leverage Ratio as of the end of such fiscal year is less than 5.0 to 1.0.
Each prepayment pursuant to this paragraph shall be made on or before the
date on which financial statements are delivered pursuant to Section 5.01
with respect to the fiscal year for which Excess Cash Flow is being
calculated (and in any event within 100 days after the end of such fiscal
year).
(e) In the event and on each occasion that any Optional
Repurchase is made pursuant to Section 6.08(b)(vii)(y), the Borrower shall
on the last day of each fiscal quarter prepay Term Borrowings in an
aggregate amount equal to the aggregate amounts expended on such Optional
Repurchases during such fiscal quarter; provided, however, that if the
amount expended on any such Optional Repurchase when taken together with
the aggregate amounts expended on all other such Optional Repurchases in
respect of which a prepayment of Term Borrowings has not yet been made
under this paragraph (e) (the "Cumulative Amount") is greater than
$20,000,000, the Borrower shall prepay Term Borrowings in an aggregate
amount equal to the Cumulative Amount not later than the date on which such
Optional Repurchase is made.
(f) Prior to any optional or, subject to Sections 2.11(c), (d)
and (e), mandatory prepayment of Borrowings hereunder, the Borrower shall
select the Borrowing or Borrowings to be prepaid and shall specify such
selection in the notice of such prepayment pursuant to paragraph (g) of
this Section. In the event of any optional or mandatory prepayment of Term
Borrowings made at a time when Term Borrowings of more than one Class
remain outstanding, the Borrower shall select Term Borrowings to be prepaid
so that the aggregate amount of such prepayment is allocated between the
Tranche A Term Borrowings, Tranche B Term Borrowings and Tranche B-1 Term
Borrowings pro rata based on the aggregate principal amount of outstanding
Borrowings of each such Class; provided that, so long as and to the extent
that any Tranche A Term Borrowings remain outstanding, any Tranche B Lender
or Tranche B-1 Lender, as the case may be, may elect, by notice to the
Administrative Agent by telephone (confirmed by telecopy) at least one
Business Day prior to the prepayment date, to decline all or any portion of
any prepayment of its respective Tranche B Term Loans or Tranche B-1 Term
Loans pursuant to this Section (other than an optional prepayment pursuant
to paragraph (a) of this Section, which may not be declined), in which case
the aggregate
45
amount of the prepayment that would have been applied to prepay Tranche B
Term Loans or Tranche B-1 Term Loans, as the case may be, but was so
declined shall be applied to prepay Tranche A Term Borrowings.
(g) The Borrower shall notify the Administrative Agent (and, in
the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the
case of prepayment of a Eurodollar Borrowing, not later than 2:00 p.m., New
York City time, three Business Days before the date of prepayment, (ii) in
the case of prepayment of an ABR Borrowing, not later than 2:00 p.m., New
York City time, one Business Day before the date of prepayment or (iii) in
the case of prepayment of a Swingline Loan, not later than 3:00 p.m., New
York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of
each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of
such prepayment; provided that, if a notice of optional prepayment is given
in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice (other than a
notice relating solely to Swingline Loans), the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02, except
as necessary to apply fully the required amount of a mandatory prepayment
or to prepay such Borrowing in full. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued interest and other amounts to
the extent required by Sections 2.13 and 2.16.
Section 2.12 Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Revolving Lender a commitment fee,
which shall accrue at the Applicable Rate on the daily unused amount of each
Revolving Commitment of such Lender during the period from and including the
Original Closing Date to but excluding the date on which the Revolving
Commitments terminate. Accrued commitment fees shall be payable in arrears on
the last day of March, June, September and December of each year and on the
dates on which the Revolving Commitments terminate, commencing on the first such
date to occur after the date hereof. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender (and the Swingline
Exposure of such Lender shall be disregarded for such purpose).
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender with a Tranche B-1 Commitment a commitment fee,
which shall accrue at 0.375% per annum on the daily unused amount of the
Tranche B-1 Commitment of such Lender during the period from and including
the Restatement Effective Date to but excluding the termination of the
Tranche B-1 Commitments. Accrued commitment fees shall be payable in
arrears on the termination of the Tranche B-1 Commitments. All commitment
fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrower agrees to pay (i) to the Administrative Agent
for the account of each Revolving Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at the same
Applicable Rate from time to time in effect for purposes of determining the
interest rate applicable to Eurodollar Revolving Loans on the daily amount
of such Lender's LC
46
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Original Closing
Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to
have any LC Exposure, and (ii) to the Issuing Bank a fronting fee, which
shall accrue at the rate of 0.125% per annum on the average daily amount of
the LC Exposure (excluding any portion thereof attributable to unreimbursed
LC Disbursements) during the period from and including the Original Closing
Date to but excluding the later of the date of termination of the Revolving
Commitments and the date on which there ceases to be any LC Exposure, as
well as the Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of March, June, September and December of each
year shall be payable in arrears on the third Business Day following such
last day; provided that all such fees shall be payable on the date on which
the Revolving Commitments terminate and any such fees accruing after the
date on which the Revolving Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(d) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
Section 2.13 Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate
plus the Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after
as well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section or (ii)
in the case of any other amount, 2% plus the rate applicable to ABR
Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving
Loans, upon termination of the Revolving Commitments; provided that (i)
interest accrued pursuant to paragraph (c) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion.
47
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366
days in a leap year), and in each case shall be payable for the actual
number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
Section 2.14 Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not adequately
and fairly reflect the cost to such Lenders of making or maintaining their
Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing; provided, however, that, in the
case of a notice received pursuant to clause (b) above, if the Administrative
Agent is able prior to the commencement of such Interest Period to ascertain,
after using reasonable efforts to poll the Lenders giving such notice, that a
rate other than the Alternate Base Rate would adequately and fairly reflect the
cost to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period, the Administrative Agent shall notify the
Borrower of such alternate rate and the Borrower may agree by written notice to
the Agent prior to the commencement of such Interest Period to increase the
Applicable Rate for the Loans included in such Borrowing for such Interest
Period to result in an interest rate equal to such alternate rate, in which case
such increased Applicable Rate shall apply to all the Eurodollar Loans included
in the relevant Borrowing.
Section 2.15 Increased Costs. (a) If any Change in Law (except with
respect to Taxes, which shall be governed by Section 2.17) shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder
48
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank, as the case may be,
for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change
in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital
or on the capital of such Lender's or the Issuing Bank's holding company,
if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Bank, to a level below that which such Lender
or the Issuing Bank or such Lender's or the Issuing Bank's holding company
could have achieved but for such Change in Law (taking into consideration
such Lender's or the Issuing Bank's policies and the policies of such
Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time after submission by such Lender to the
Borrower of a written request therefor, the Borrower will pay to such
Lender or the Issuing Bank, as the case may be, such additional amount or
amounts as will compensate such Lender or the Issuing Bank or such Lender's
or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth
in reasonable detail the matters giving rise to a claim under this Section
2.15 and the calculation of such claim by such Lender or the Issuing Bank
or its holding company, as the case may be, shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall
pay such Lender or the Issuing Bank, as the case may be, the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to
compensate a Lender or the Issuing Bank pursuant to this Section for any
increased costs or reductions incurred more than 180 days prior to the date
that such Lender or the Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender's or the Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 180-day
period referred to above shall be extended to include the period of
retroactive effect thereof.
Section 2.16 Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(g) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19 or Section 9.02(c), then, in any such event, the Borrower shall
compensate each Lender for the loss, cost and expense attributable to such
event. Such loss, cost or expense to any Lender shall consist of an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest that would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest that would accrue on such principal
amount for such period at the interest rate that such Lender would bid were it
to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the Eurodollar market. A certificate of
any Lender setting forth any amount or amounts that such Lender is entitled to
receive
49
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
Section 2.17 Taxes (a) Any and all payments by or on account of any
obligation of the Borrower hereunder or under any other Loan Document shall be
made free and clear of, and without deduction for, any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be,
on or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto. A certificate as to the
amount of such payment or liability prepared in good faith and delivered to
the Borrower by a Lender or the Issuing Bank, or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall
be presumed correct, provided that upon reasonable request of the Borrower,
a Lender shall provide all relevant information reasonably accessible to it
justifying such amount.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as
will permit such payments to be made without withholding or at a reduced
rate, provided that such Foreign Lender has received written notice from
the Borrower advising it of the availability of such exemption or reduction
and supplying all applicable documentation.
(f) If the Administrative Agent, a Lender or the Issuing Bank
determines, in its reasonable judgment, that it has received a refund of
any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.17, it shall pay over such refund to the
Borrower within a reasonable period of time (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under
this Section 2.17 with respect to the Taxes or Other Taxes giving rise to
such refund),
50
net of all out-of-pocket expenses of the Administrative Agent, such Lender
or the Issuing Bank and without interest (other than any interest paid by
the relevant Governmental Authority with respect to such refund); provided,
that the Borrower, upon the request of the Administrative Agent, such
Lender or the Issuing Bank, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent, such Lender
or the Issuing Bank in the event the Administrative Agent, such Lender or
the Issuing Bank is required to repay such refund to such Governmental
Authority. This Section shall not be construed to require the
Administrative Agent, any Lender or the Issuing Bank 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 2.18 Payments Generally; Pro Rata Treatment; Sharing of
Setoffs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.15,
2.16 or 2.17, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 2:00 p.m., New York City time), on the date when
due, in immediately available funds, without setoff or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made in
dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of
interest and fees then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of interest and fees then due to
such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans, Term Loans or participations in LC
Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Revolving Loans,
Term Loans and participations in LC Disbursements and Swingline Loans and
accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash
at face value) participations in the Revolving Loans, Term Loans and
participations in LC Disbursements and Swingline Loans of other Lenders to
the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the relative aggregate
amounts of principal of and accrued interest on their Revolving Loans, Term
Loans and participations in LC Disbursements and Swingline Loans; provided
that (i) if any such participations are purchased and all or any portion of
the payment giving rise thereto is recovered, such participations shall be
51
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained
by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to
any assignee or participant, other than to the Borrower or any Subsidiary
or Affiliate thereof (as to which the provisions of this paragraph shall
apply). The Borrower consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against
the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute
to the Lenders or the Issuing Bank, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of
the Lenders or the Issuing Bank, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender or Issuing Bank with interest thereon, for each
day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater
of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.18(d) or
9.03(c), then the Administrative Agent may, in its discretion
(notwithstanding any contrary provision hereof), apply any amounts
thereafter received by the Administrative Agent for the account of such
Lender to satisfy such Lender's obligations under such Sections until all
such unsatisfied obligations are fully paid.
Section 2.19 Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.15, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.17, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.15 or 2.17, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.17, or if any Lender defaults in its obligation to fund Loans hereunder,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment
is being assigned, the Issuing Bank and Swingline Lender), which consent
shall not unreasonably be
52
withheld and (ii) such Lender shall have received payment of an amount
equal to the outstanding principal of its Loans and funded participations
in LC Disbursements and Swingline Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to
the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and such Lender shall be
released from all obligations hereunder. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Each of Holdings and the Borrower and, solely for purposes of Section
3.01, 3.02, 3.03, 3.08, 3.09 and 3.12, the Parent represents and warrants to the
Lenders that:
Section 3.01 Organization; Powers. Each of the Parent, Holdings, the
Borrower and its Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
Section 3.02 Authorization; Enforceability. The Transactions entered
into and to be entered into by the Parent and each Loan Party are within the
Parent's or such Loan Party's (as the case may be) corporate or limited
liability company powers and have been duly authorized by all necessary
corporate or limited liability company and, if required, stockholder or member
action. This Agreement has been duly executed and delivered by each of the
Parent, Holdings and the Borrower and constitutes, and each other Loan Document
to which the Parent or any Loan Party is to be a party, when executed and
delivered by the Parent or such Loan Party (as the case may be), will
constitute, a legal, valid and binding obligation of the Parent, Holdings, the
Borrower or such Loan Party (as the case may be), enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
Section 3.03 Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except as set forth on Schedule
3.03 or have been obtained or made and are in full force and effect and except
filings necessary to perfect Liens created under the Loan Documents, (b) will
not violate any applicable law or regulation or the charter, limited liability
company agreement, by-laws or other organizational documents of the Parent,
Holdings, the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Parent, Holdings, the
Borrower or any of its Subsidiaries or any of their assets, or give rise to a
right thereunder to require any payment to be made by the Parent, Holdings, the
Borrower or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Parent, Holdings, the Borrower or any
of its Subsidiaries, except Liens permitted under Section 6.02.
Section 3.04 Financial Condition; No Material Adverse Change. (a) The
audited consolidated balance sheets of Holdings as of December 31, 2002,
December 31, 2003 and December 31, 2004 and the related consolidated statements
of operations and of cash flows for the fiscal years ended on
53
such dates, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by KPMG LLP,
present fairly the consolidated financial condition of Holdings as of such
dates, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of Holdings as of such dates and for such periods in
accordance with GAAP, subject to normal year-end audit adjustments.
(b) Holdings has heretofore furnished to the Lenders its
projected pro forma consolidated balance sheet as of December 31, 2005
prepared giving effect to the Transactions as if such Transactions had
occurred on such date. Such projected pro forma consolidated balance sheet
has been prepared in good faith based on the same assumptions used to
prepare the pro forma financial statements included in the Information
Memorandum (which assumptions are believed by Holdings and the Borrower to
be reasonable at the time prepared).
(c) Except as disclosed in the financial statements referred to
above or the notes thereto or in the Information Memorandum and except for
the Disclosed Matters, after giving effect to the Transactions, none of
Holdings, the Borrower or its Subsidiaries has, as of the Restatement
Effective Date, any contingent liabilities, unusual long-term commitments
or unrealized losses that, individually or in the aggregate, could
reasonably be excepted to result in a Material Adverse Effect.
(d) Since December 31, 2004, there has been no material adverse
change in the business, operations, prospects, assets, liabilities or
financial condition of Holdings, the Borrower and its Subsidiaries, taken
as a whole.
Section 3.05 Properties. (a) Each of Holdings, the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of Holdings, the Borrower and its Subsidiaries owns, or
is licensed to use, all trademarks, tradenames, copyrights, patents and
other intellectual property material to its business, and the use thereof
by Holdings, the Borrower and its Subsidiaries does not infringe upon the
rights of any other Person, except, in each case, for any matters that,
individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by the Borrower or any of its Subsidiaries as of
the Restatement Effective Date after giving effect to the Transactions.
Section 3.06 Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of Holdings or the Borrower,
threatened against or affecting Holdings, the Borrower, any of its Subsidiaries
or any of their respective executive officers or directors (i) which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve
any of the Loan Documents or the Transactions.
(b) Except for either the Disclosed Matters or any other matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, none of Holdings, the Borrower or any
of its Subsidiaries (i) has failed to comply with any Environmental Law or
to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of
54
any claim with respect to any Environmental Liability or (iv) knows of any
facts or circumstances which are reasonably likely to form the basis for
any Environmental Liability.
Section 3.07 Compliance with Laws and Agreements. Each of Holdings,
the Borrower and its Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
Section 3.08 Investment and Holding Company Status. None of the
Parent, Holdings, the Borrower or any of its Subsidiaries is (a) an "investment
company" as defined in, or subject to regulation under, the Investment Company
Act of 1940 or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
Section 3.09 Taxes. Each of the Parent, Holdings, the Borrower and its
Subsidiaries has timely filed or caused to be filed all material Tax returns and
reports required to have been filed and has paid or caused to be paid all
material Taxes required to have been paid by it, except any Taxes that are being
contested in good faith by appropriate proceedings and for which the Parent,
Holdings, the Borrower or such Subsidiary, as applicable, has set aside on its
books adequate reserves.
Section 3.10 ERISA; Margin Regulations. (a) During the five year
period prior to the date on which this representation is made or deemed to be
made with respect to any Plan or Multiemployer Plan, no ERISA Event has occurred
or is reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability has occurred during such five year period or
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed the fair market value of the assets of such Plan by an amount that would
reasonably be expected to have a Material Adverse Effect, and the present value
of all accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No.
87) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of all such underfunded
Plans by an amount that would reasonably be expected to have a Material Adverse
Effect.
(b) None of Holdings, the Borrower or any of its Subsidiaries is
engaged principally, or as one of its important activities, in the business
of extending credit for the purpose of buying or carrying Margin Stock. No
part of the proceeds of any Loan or any Letter of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, in any manner that would entail a violation of the Regulations
of the Board, including Regulation T, U or X.
Section 3.11 Disclosure. Neither the Information Memorandum nor any of
the other written reports, financial statements, certificates or other written
information, taken as a whole, furnished by or on behalf of any Loan Party to
the Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder
(as of the date thereof and as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, Holdings and the Borrower represent
only that such information was prepared in good faith based upon assumptions
believed to be reasonable (i) at the time such projected
55
financial information was prepared, (ii) on the date of the Information
Memorandum and (iii) as of the date hereof.
Section 3.12 Subsidiaries. As of the Restatement Effective Date, the
Parent does not have any subsidiaries other than (a) East Holdings, the East
Borrower and the East Borrower's subsidiaries and (b) Holdings, the Borrower and
the Borrower's Subsidiaries, and Holdings does not have any subsidiaries other
than the Borrower and the Borrower's Subsidiaries. Schedule 3.12 sets forth (i)
the name of, and the ownership interest of the Parent in, each subsidiary of the
Parent and identifies each subsidiary that is a Subsidiary Loan Party, in each
case as of the Restatement Effective Date, (ii) the name of, and the ownership
interest of Holdings in, each subsidiary of Holdings and identifies each
subsidiary that is a Subsidiary Loan Party, in each case as of the Restatement
Effective Date, and (iii) the name of, and the ownership interest of the
Borrower in, each Subsidiary of the Borrower and identifies each Subsidiary that
is a Subsidiary Loan Party, in each case as of the Restatement Effective Date.
Section 3.13 Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of Holdings, the Borrower and its
Subsidiaries as of the Restatement Effective Date. As of the Restatement
Effective Date, all premiums due and payable in respect of such insurance have
been paid. Holdings and the Borrower believe that the insurance maintained by or
on behalf of Holdings, the Borrower and its Subsidiaries is adequate.
Section 3.14 Labor Matters. As of the Restatement Effective Date,
there are no strikes, lockouts or slowdowns against Holdings, the Borrower or
any Subsidiary pending or, to the knowledge of Holdings or the Borrower,
threatened. Except as could not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect: (a) the hours worked by and
payments made to employees of Holdings, the Borrower and the Subsidiaries have
not been in violation of the Fair Labor Standards Act or any other applicable
Federal, state, local or foreign law dealing with such matters; (b) all payments
due from Holdings, the Borrower or any Subsidiary, or for which any claim may be
made against Holdings, the Borrower or any Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of Holdings, the Borrower or such
Subsidiary; and (c) the consummation of the Transactions will not give rise to
any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which Holdings, the Borrower or any
Subsidiary is bound.
Section 3.15 Solvency. Immediately after the consummation of the
Transactions to occur on the Restatement Effective Date and immediately
following the making of each Loan made on the Restatement Effective Date and
after giving effect to the application of the proceeds of such Loans and to the
rights of reimbursement, contribution and subrogation created by the Collateral
Agreement, (a) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of each Loan
Party will be greater than the amount that will be required to pay the probable
liability of its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Loan Party will not have unreasonably small capital with
which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted following the Restatement Effective
Date.
Section 3.16 Senior Indebtedness. The Obligations constitute "Senior
Indebtedness" under and as defined in the Senior Subordinated Debt Documents.
Section 3.17 Parent Acquisition. As of the Restatement Effective Date,
the Merger Agreement has been duly authorized, executed and delivered by each of
the parties thereto and constitutes
56
a legal, valid and binding obligation of each such party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law. A true, correct and complete copy (including
any amendments and waivers) of the Merger Agreement has been furnished to the
Administrative Agent.
Section 3.18 Security Documents. (a) The Collateral Agreement is
effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of the Pledged
Stock (as defined in the Collateral Agreement) described in the Collateral
Agreement, when stock certificates representing such Pledged Stock are delivered
to the Collateral Agent, and in the case of the other Collateral described in
the Collateral Agreement (other than the Intellectual Property, as defined in
the Collateral Agreement), when financing statements and other filings specified
on Schedule 5 of the Perfection Certificate in appropriate form are filed in the
offices specified on Schedule 6 of the Perfection Certificate (as updated by the
Borrower from time to time in accordance with Section 5.03), the Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for the Obligations to the extent perfection can
be obtained by filing Uniform Commercial Code financing statements, in each case
prior and superior in right to any other Person (except, in the case of
Collateral other than Pledged Stock, Liens permitted by Section 6.02(a)).
(b) When the Collateral Agreement or a summary thereof is
properly filed in the United States Patent and Trademark Office and the
United States Copyright Office, and, with respect to Collateral in which a
security interest cannot be perfected by such filings, upon the proper
filing of the financing statements referred to in paragraph (a) above, the
Collateral Agreement and such financing statements shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest
of the grantors thereunder in the Intellectual Property (as defined in the
Collateral Agreement), in each case prior and superior in right to any
other Person (it being understood that subsequent recordings in the United
States Patent and Trademark Office and the United States Copyright Office
may be necessary to perfect a lien on registered trademarks and patents,
trademark and patent applications and registered copyrights acquired by the
grantors after the date hereof).
(c) The Mortgages, if any, entered into after the Restatement
Effective Date pursuant to Section 5.13 shall be effective to create in
favor of the Collateral Agent, for the ratable benefit of the Secured
Parties, a legal, valid and enforceable Lien on all of the Loan Parties'
right, title and interest in and to the Mortgaged Property thereunder and
the proceeds thereof, and when such Mortgages are filed in the proper real
estate filing offices, such Mortgages shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of Loan
Parties in such Mortgages Property and the proceeds thereof, in each case
prior and superior in right to any other Person, other than with respect to
the rights of Person pursuant to Liens expressly permitted by Section
6.02(a).
Section 3.19 Liens. There are no Liens of any nature whatsoever on any
properties of Holdings, the Borrower or any of its Subsidiaries other than
Permitted Encumbrances and Liens permitted by Section 6.02(a).
Section 3.20 No Burdensome Restrictions. None of Holdings, the
Borrower or any of its Subsidiaries is a party to or bound by any Contractual
Obligation, or subject to any Requirement of Law, which has resulted in a
Material Adverse Effect.
57
ARTICLE IV
CONDITIONS
Section 4.01 Each Credit Event. (a) The obligation of each Lender to
make a Loan on any date (other than any Tranche B-1 Term Loan), and of the
Issuing Bank to issue, increase, renew or extend any Letter of Credit on any
date, is subject to receipt of the request therefor in accordance herewith and
to the satisfaction of the following conditions:
(i) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date such Loan is made or the date of
issuance, increase, renewal or extension of such Letter of Credit, as
applicable, except to the extent such representations and warranties
expressly relate to an earlier date (in which case such
representations and warranties shall be true and correct in all
material respects on and as of such earlier date); provided, however,
that for purposes of making the representations and warranties
contained in Section 3.04(d), solely in connection with a request for
a Revolving Loan or issuance for the increase, renewal or extension of
any Letter of Credit, the term "prospects" contained therein shall be
disregarded.
(ii) At the time of and immediately after giving effect to such
Borrowing or the issuance, increase, renewal or extension of such
Letter of Credit, as applicable, no Default shall have occurred and be
continuing.
(b) The obligation of each Lender to make a Tranche B-1 Term Loan
after the Restatement Effective Date is subject to each of the
representations and warranties made by any Loan Party in Sections 3.02,
3.03(b), 3.18 and 3.19 of the Restated Credit Agreement being true and
correct in all material respects.
(c) Each funding of Loans (other than any Borrowing of Tranche
B-1 Term Loans) and each issuance, increase, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and
warranty by Holdings and the Borrower on the date thereof as to the matters
specified in paragraph (a) of this Section. Each funding of Tranche B-1
Term Loans made after the Restatement Effective Date shall be deemed to
constitute a representation and warranty by Holdings and the Borrower on
the date thereof as to the matters specified in paragraph (b) of this
Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrower covenants and agrees with the Lenders that:
Section 5.01 Financial Statements and Other Information. Holdings and
the Borrower will furnish to the Administrative Agent and each Lender:
(a) no later than the earlier of (i) 10 days after the date that
Holdings is required to file a report on Form 10-K with the Securities and
Exchange Commission in compliance with the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(whether or not Holdings is so subject to such reporting requirements), and
(ii) 100 days
58
after the end of each fiscal year of Holdings, Holdings audited
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by KPMG LLP or other independent public
accountants of recognized national standing (without a "going concern" or
like qualification or exception and without any qualification or exception
as to the scope of such audit or other material qualification or exception)
to the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of
Holdings and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) no later than the earlier of (i) 10 days after the date that
Holdings is required to file a report on Form 10-Q with the Securities and
Exchange Commission in compliance with the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(whether or not Holdings is so subject to such reporting requirements), and
(ii) 55 days after the end of each of the first three fiscal quarters of
each fiscal year of Holdings, Holdings unaudited consolidated balance sheet
and related statements of operations, stockholders' equity and cash flows
as of the end of and for such fiscal quarter and the then elapsed portion
of the fiscal year, setting forth in each case in comparative form the
figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by
a Financial Officer as presenting fairly in all material respects the
financial condition and results of operations of Holdings and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with the Financial
Covenants, (iii) stating whether any change in GAAP or in the application
thereof has occurred since the date of the audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate, (iv) identifying any Subsidiary formed or
acquired since the end of the previous fiscal quarter, (v) identifying any
parcels of real property or improvements thereto with a value exceeding
$10,000,000 that have been acquired by any Loan Party since the end of the
previous fiscal quarter, (vi) identifying any changes of the type described
in Section 5.03(a) that have not been previously reported by the Borrower,
(vii) identifying any Permitted Acquisition or other acquisitions of going
concerns and any Investments in Unrestricted Subsidiaries that have been
consummated since the end of the previous fiscal quarter, including the
date on which each such acquisition or Investment was consummated and the
consideration therefor, (viii) identifying any material Intellectual
Property (as defined in the Collateral Agreement) with respect to which a
notice is required to be delivered under the Collateral Agreement and has
not been previously delivered, (ix) identifying any Prepayment Events that
have occurred since the end of the previous fiscal quarter and setting
forth a reasonably detailed calculation of the Net Proceeds (and, if
applicable, Allocable Net Proceeds) received from any such Prepayment
Events, (x) identifying any Designated Equity Proceeds received during the
previous fiscal quarter and any application of Designated Equity Proceeds
during the previous fiscal quarter to Designated Equity Proceeds Uses and
(xi) identifying any change in the locations at which equipment and
inventory, in each case with a value in excess of $10,000,000, are located,
if not owned by a Loan Party;
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(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules, guidelines or practice);
(e) within 30 days after the commencement of each fiscal year of
the Borrower, a detailed consolidated budget for such fiscal year (broken
down by month and including a projected consolidated balance sheet and
related statements of projected operations and cash flow as of the end of
and for such fiscal year and setting forth the assumptions used for
purposes of preparing such budget) and, promptly when available, any
significant revisions of such budget;
(f) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed
by the Parent, Holdings, the Borrower or any Subsidiary with the Securities
and Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national securities
exchange, or distributed by the Parent to its shareholders generally; and
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Parent, Holdings, the Borrower or any Subsidiary, or
compliance with the terms of any Loan Document, as the Administrative Agent
(including on behalf of any Lender) may reasonably request.
Section 5.02 Notices of Material Events. Holdings and the Borrower
will furnish to the Administrative Agent and each Lender written notice of the
following promptly after any Financial Officer or executive officer of Holdings,
the Borrower or any Subsidiary obtains knowledge thereof:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting
the Parent, Holdings, the Borrower or any Affiliate thereof that involves a
reasonable possibility of an adverse determination and which, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 5.03 Information Regarding Collateral. (a) The Borrower will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's legal name, as reflected in its organization documents, (ii) in
any Loan Party's jurisdiction of organization or corporate structure and (iii)
in any Loan Party's identity, Federal Taxpayer Identification Number or
organization number, if any, assigned by the jurisdiction of its organization.
The Borrower agrees not to effect or permit any change referred to in clauses
(i) through (iii) of the preceding sentence unless all filings have been made
60
under the Uniform Commercial Code or otherwise that are required in order for
the Agent to continue at all times following such change to have a valid, legal
and perfected security interest in all the Collateral for the benefit of the
Secured Parties. The Borrower also agrees promptly to notify the Administrative
Agent if any damage to or destruction of Collateral that is uninsured and has a
fair market value exceeding $10,000,000 occurs.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a)
of Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the
Borrower (i) setting forth the information required pursuant to Section 2
of the Perfection Certificate or confirming that there has been no change
in such information since the date of the Perfection Certificate most
recently delivered or the date of the most recent certificate delivered
pursuant to this Section and (ii) certifying that all Uniform Commercial
Code financing statements (including fixture filings, as applicable) or
other appropriate filings, recordings or registrations, including all
refilings, rerecordings and reregistrations, containing a description of
the Collateral have been filed of record in each governmental, municipal or
other appropriate office in each jurisdiction identified pursuant to clause
(i) above to the extent necessary to protect and perfect the security
interests under the Collateral Agreement for a period of not less than 18
months after the date of such certificate (except as noted therein with
respect to any continuation statements to be filed within such period).
Section 5.04 Existence; Conduct of Business. Each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, contracts, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; provided that the foregoing shall not prohibit any
merger, consolidation, liquidation or dissolution permitted under Section 6.03
or any sale of assets permitted under Section 6.05.
Section 5.05 Payment of Obligations. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, pay its material Indebtedness
and other material obligations, including Tax liabilities, before the same shall
become delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings and (b) Holdings,
the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP.
Section 5.06 Maintenance of Properties. Each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to, keep and maintain all
property material to the conduct of its business in good working order and
condition, ordinary wear and tear excepted.
Section 5.07 Insurance. Each of Holdings and the Borrower will, and
will cause each of its Subsidiaries to, maintain, with financially sound and
reputable insurance companies (a) insurance in such amounts (with no greater
risk retention) and against such risks as are customarily maintained by
companies of established repute engaged in the same or similar businesses
operating in the same or similar locations and (b) all insurance required to be
maintained pursuant to the Security Documents. The Borrower will furnish to the
Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.
Section 5.08 Casualty and Condemnation. The Borrower (a) will furnish
to the Administrative Agent and the Lenders prompt written notice of any
casualty or other insured damage to any Collateral fairly valued at more than
$10,000,000 or the commencement of any action or proceeding for the taking of
any Collateral or any material part thereof or material interest therein under
power of eminent domain or by condemnation or similar proceeding and (b) will
ensure that the Net Proceeds of
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any such event (whether in the form of insurance proceeds, condemnation awards
or otherwise) are collected and applied in accordance with the applicable
provisions of the Security Documents and this Agreement.
Section 5.09 Books and Records; Inspection and Audit Rights. Each of
Holdings and the Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and independent
accountants, all at such reasonable times and as often as reasonably requested.
Section 5.10 Compliance with Laws. Each of Holdings and the Borrower
will, and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations, including Environmental Laws, and orders of any Governmental
Authority applicable to it, its operations or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
Section 5.11 Use of Proceeds and Letters of Credit. The proceeds of
the Tranche B-1 Term Loans will be used only to finance a portion of the Parent
Acquisition on the Restatement Effective Date and to redeem the Existing Notes
pursuant to the Change in Control Offers on or after the Restatement Effective
Date and, in each case, to pay fees and expenses in connection therewith;
provided that, notwithstanding the foregoing, up to $50,000,000 of such proceeds
may be used for general corporate purposes. The proceeds of the Revolving Loans
and Swingline Loans will be used only for general corporate purposes of the
Borrower. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X. Letters of Credit will be issued
only to support obligations of the Borrower and its Subsidiaries incurred for
general corporate purposes.
Section 5.12 Additional Subsidiaries. If any additional Subsidiary is
formed or acquired after the Restatement Effective Date, the Borrower will,
within three Business Days after such Subsidiary is formed or acquired, notify
the Administrative Agent and the Lenders thereof and, within 10 Business Days
after such Subsidiary is formed or acquired, cause the Collateral and Guarantee
Requirement to be satisfied with respect to such Subsidiary (if it is a
Subsidiary Loan Party) and with respect to any Equity Interest in or
Indebtedness of such Subsidiary owned by or on behalf of any Loan Party.
Section 5.13 Further Assurances. (a) Each of Holdings and the Borrower
will, and will cause each Subsidiary Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, Mortgages and other documents), that may be required under any
applicable law, or that the Administrative Agent or the Required Lenders may
reasonably request, to cause the Collateral and Guarantee Requirement to be and
remain satisfied, all at the expense of the Loan Parties; provided, that the
Collateral and Guarantee Requirement need not be satisfied with respect to (i)
real properties owned by Holdings, the Borrower or any Subsidiary with an
individual fair market value (including fixtures and improvements) that is less
than $10,000,000 and (ii) any real property held by Holdings, the Borrower or
any Subsidiary as a lessee under a lease. Holdings and the Borrower also agree
to provide to the Administrative Agent, from time to time upon request, evidence
reasonably satisfactory to the Administrative Agent as to the perfection and
priority of the Liens created or intended to be created by the Security
Documents.
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(b) If any material asset (including any real property or
improvements thereto or any interest therein) that has an individual fair
market value of more than $10,000,000 is acquired by the Borrower or any
Subsidiary Loan Party after the Restatement Effective Date or owned by an
entity at the time it becomes a Subsidiary Loan Party (in each case other
than assets constituting Collateral under the Collateral Agreement that
become subject to the Lien of the Collateral Agreement upon acquisition
thereof), the Borrower will notify the Administrative Agent and the Lenders
thereof, and, if requested by the Administrative Agent or the Required
Lenders, the Borrower will cause such asset to be subjected to a Lien
securing the Obligations and will take, and cause the Subsidiary Loan
Parties to take, such actions as shall be necessary or reasonably requested
by the Administrative Agent to grant and perfect such Liens, including
actions described in paragraph (a) of this Section, all at the expense of
the Loan Parties; provided, that the Collateral and Guarantee Requirement
need not be satisfied with respect to (i) real properties owned by
Holdings, the Borrower or any Subsidiary with an individual fair market
value (including fixtures and improvements) that is less than $10,000,000,
(ii) any real property held by Holdings, the Borrower or any Subsidiary as
a lessee under a lease and (iii) other assets with respect to which the
Agent determines that the cost or impracticability of including such assets
as Collateral would be excessive in relation to the benefits to the Secured
Parties.
Section 5.14 Interest Rate Protection. As promptly as practicable, and
in any event within 90 days after the Restatement Effective Date, the Borrower
will enter into, and thereafter for a period of not less than three years will
maintain in effect, one or more interest rate protection agreements on such
terms and with such parties as shall be reasonably satisfactory to the
Administrative Agent, to the extent necessary to fix or limit the interest cost
to the Borrower with respect to at least 33% of the Long-Term Indebtedness of
Holdings and the Borrower (after taking into account all fixed-rate Long-Term
Indebtedness, with the West Allocable Share of all Long-Term Indebtedness of
Parent being deemed to be Long-Term Indebtedness of Holdings and the Borrower
solely for purposes of determining compliance with this Section 5.14).
Section 5.15 Transition of Qwest Billing. Each of Holdings and the
Borrower will, and will cause each of its Subsidiaries to, at all times maintain
procedures and systems permitting the receivables billing and collection
services performed for the Borrower by Qwest Corp. under the Billing and
Collection Agreement to be assumed and conducted by the Borrower or a Subsidiary
(or the Parent or a subsidiary of the Parent on behalf of the Borrower as one of
the Shared Services) substantially equivalent to (and permitting such a
transition within a timeframe no longer than that achievable under) the
procedures and systems currently in effect that were implemented pursuant to
Section 5.15 of the East Credit Agreement.
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Holdings and the Borrower covenants and
agrees with the Lenders that:
Section 6.01 Indebtedness; Certain Equity Securities. (a) Holdings and
the Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness or any Attributable Debt, except:
(i) Indebtedness created under the Loan Documents and any
Permitted Holdings Debt, Permitted Subordinated Indebtedness or other
unsecured Indebtedness of the Borrower or
63
its Subsidiaries in each case to the extent the Net Proceeds thereof
are used to refinance Indebtedness created under the Loan Documents;
(ii) the Senior Subordinated Debt and Refinancing Indebtedness in
respect thereof;
(iii) the Senior Unsecured Debt and Refinancing Indebtedness in
respect thereof;
(iv) Indebtedness existing on the Original Closing Date and set
forth in Schedule 6.01 and Refinancing Indebtedness in respect
thereof;
(v) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary; provided that
Indebtedness of any Subsidiary that is not a Loan Party to the
Borrower or any Subsidiary Loan Party shall be subject to Section
6.04;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary
and by any Subsidiary of Indebtedness of any other Subsidiary;
provided that Guarantees by the Borrower or any Subsidiary Loan Party
of Indebtedness of any Subsidiary that is not a Loan Party shall be
subject to Section 6.04;
(vii) (A) Indebtedness and Attributable Debt of the Borrower or
any Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals,
refinancings and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (other than by an
amount not greater than fees and expenses, including premium and
defeasance costs, associated therewith) or result in a decreased
average weighted life thereof; provided that (1) such Indebtedness or
Attributable Debt is incurred prior to or within 90 days after such
acquisition or the completion of such construction or improvement and
(2) the aggregate principal amount of Indebtedness and Attributable
Debt permitted by this clause (vii)(A) shall not exceed $45,000,000 at
any time outstanding, and (B) Capital Lease Obligations and
Attributable Debt in respect of the Headquarters Sale-Leaseback not in
excess of $12,500,000 at any time outstanding;
(viii) Indebtedness of any Person that becomes a Subsidiary after
the Original Closing Date; provided that (A) such Indebtedness exists
at the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary (except to the extent such Indebtedness refinanced other
Indebtedness to facilitate such entity becoming a Subsidiary) and (B)
the aggregate principal amount of Indebtedness permitted by this
clause (viii) shall not exceed $30,000,000 at any time outstanding;
(ix) other unsecured Indebtedness in an aggregate principal
amount not exceeding $75,000,000 at any time outstanding;
(x) Third Party Interests issued by Securitization Vehicles in
Securitizations permitted by Section 6.05, and Indebtedness
represented by such Third Party Interests and Indebtedness consisting
of Standard Securitization Undertakings, provided that the aggregate
amount of such Third Party Interests shall not exceed $232,000,000 at
any time outstanding;
(xi) Permitted Holdings Debt, Permitted Subordinated Indebtedness
(and any related Permitted Subordinated Guarantee) and any other
unsecured Indebtedness, in each case without any limitation as to
amount so long as Holdings, the Borrower and the Subsidiaries are in
64
compliance, on a pro forma basis after giving effect to the incurrence
of such Indebtedness, with the Financial Covenants, and the Net
Proceeds of such Indebtedness are applied to prepay Loans to the
extent required by Section 2.11(c);
(xii) Permitted Holdings Debt and Permitted Subordinated
Indebtedness (and any related Permitted Subordinated Guarantee)
incurred to finance a Permitted Acquisition; provided that (1) such
Indebtedness is incurred at the time of or within 90 days after
consummation of such Permitted Acquisition and (2) the aggregate
principal amount of Indebtedness permitted by this clause (xii) shall
not exceed $300,000,000 at any time outstanding; and
(xiii) Indebtedness incurred pursuant to any Put Financing.
(b) Neither Holdings nor the Borrower will, nor will they permit
any Subsidiary to, issue any preferred stock or other preferred Equity
Interests, other than (i) Non-Cash Pay Preferred Stock of Holdings and (ii)
Third Party Interests issued by Securitization Vehicles.
Section 6.02 Liens. (a) The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien existing on the Original Closing Date and set
forth in Schedule 6.02 on any property or asset of the Borrower or any
Subsidiary; provided that (A) such Lien shall not apply to any other
property or asset of the Borrower or any Subsidiary (other than
proceeds) and (B) such Lien shall secure only those obligations which
it secures on the date hereof and extensions, renewals, refinancings
and replacements thereof that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on
any property or asset of any Person that becomes a Subsidiary after
the Original Closing Date prior to the time such Person becomes a
Subsidiary; provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (B) such Lien shall not
apply to any other property or assets of the Borrower or any
Subsidiary (other than proceeds) and (C) such Lien shall secure only
those obligations which it secures on the date of such acquisition or
the date such Person becomes a Subsidiary, as the case may be and
extensions, renewals, refinancings and replacements thereof that do
not increase the outstanding principal amount thereof (other than by
an amount not in excess of fees and expenses, including premium and
defeasance costs, associated therewith) or result in a decreased
average weighted life thereof;
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (A) such
Liens secure Indebtedness permitted by clause (vii) of Section
6.01(a), (B) such Liens and the Indebtedness secured thereby are
incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed the cost of acquiring,
65
constructing or improving such fixed or capital assets and (D) such
Liens shall not apply to any other property or assets of the Borrower
or any Subsidiary (other than proceeds);
(vi) Liens in favor of any Securitization Vehicle or any
collateral agent on Securitization Assets transferred or purported to
be transferred to such Securitization Vehicle in connection with
Securitizations permitted by Section 6.05; and
(vii) Liens not otherwise permitted by this Section 6.02 securing
obligations other than Indebtedness and involuntary Liens not
otherwise permitted by this Section 6.02 securing Indebtedness, which
obligations and Indebtedness are in an aggregate amount not in excess
of $30,000,000 at any time outstanding.
(b) Holdings will not create, incur, assume or permit to exist
any Lien on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or
rights in respect thereof, except Liens created under the Collateral
Agreement and Permitted Encumbrances.
Section 6.03 Fundamental Changes. (a) Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate
with it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing, (i) any Subsidiary may merge into the Borrower in a transaction in
which the Borrower is the surviving corporation, (ii) any Subsidiary may merge
into any Subsidiary in a transaction in which the surviving entity is a
wholly-owned Subsidiary and, if any party to such merger is a Subsidiary Loan
Party, a Subsidiary Loan Party, (iii) any Subsidiary may merge or consolidate
with any other Person in order to effect a Permitted Acquisition and (iv) any
Subsidiary (other than the Borrower) may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders;
provided that any such merger involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than a
Permitted Business.
(c) Holdings will not engage in any business or activity other
than the ownership of all the outstanding shares of capital stock of the
Borrower and activities incidental thereto. Holdings will not own or
acquire any assets (other than shares of capital stock of the Borrower,
cash and Permitted Investments) or incur any liabilities (other than
liabilities under the Loan Documents, obligations of Holdings in respect of
Permitted Holdings Debt, obligations under any employment agreement, stock
option plans or other benefit plans for management or employees of
Holdings, the Borrower and its Subsidiaries, liabilities imposed by law,
including tax liabilities, and other liabilities incidental to its
existence and permitted business and activities).
Section 6.04 Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, and will not permit any of its Subsidiaries
to, make, purchase, hold or acquire (including pursuant to any merger with any
Person that was not a wholly owned Subsidiary prior to such merger) any
Investment, except:
(a) the West Acquisition;
(b) Permitted Investments;
66
(c) Investments existing on the date hereof and set forth on
Schedule 6.04;
(d) Investments by the Borrower and its Subsidiaries in Equity
Interests in (i) Subsidiaries that are Subsidiary Loan Parties immediately
prior to the time of such Investments and (ii) Foreign Subsidiaries;
provided that the aggregate amount of investments by Loan Parties in, loans
and advances by Loan Parties to, and Guarantees by Loan Parties of
Indebtedness of, Subsidiaries that are not Loan Parties (including all such
investments, loans, advances and Guarantees existing on the Original
Closing Date but excluding any such Investments made after the Original
Closing Date with Designated Equity Proceeds) shall not exceed $30,000,000
at any time outstanding;
(e) loans or advances made by the Borrower to any Subsidiary and
made by any Subsidiary to the Borrower or any other Subsidiary; provided
that (A) any such loans and advances made to a Loan Party shall be
subordinated to the Obligations pursuant to the Affiliate Subordination
Agreement and shall be evidenced by a promissory note pledged pursuant to
the Collateral Agreement and (B) the amount of such loans and advances made
by Loan Parties to Subsidiaries that are not Loan Parties shall be subject
to the limitation set forth in clause (d) above;
(f) Guarantees constituting Indebtedness permitted by Section
6.01; provided that (i) a Subsidiary shall not Guarantee either the Senior
Subordinated Debt or the Senior Unsecured Debt unless (A) such Subsidiary
also has Guaranteed the Obligations pursuant to the Collateral Agreement,
(B) such Guarantee of the Senior Subordinated Debt is subordinated to such
Guarantee of the Obligations on terms no less favorable to the Lenders than
the subordination provisions of the Senior Subordinated Debt and (C) such
Guarantee of the Senior Subordinated Debt and Senior Unsecured Debt
provides for the release and termination thereof, without action by any
party, upon any release and termination of such Guarantee of the
Obligations, and (ii) the aggregate principal amount of Indebtedness of
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party
shall be subject to the limitation set forth in clause (d) above;
(g) Permitted Acquisitions, provided that such Permitted
Acquisitions shall be made (i) for consideration consisting of common stock
of the Parent or Holdings or Non-Cash Pay Preferred Stock or with
Designated Equity Proceeds or (ii) to the extent not made for such stock
consideration or with Designated Equity Proceeds, for other consideration
provided that the aggregate cumulative amount of such other consideration
paid after the Original Closing Date for all such Permitted Acquisitions
(including any Indebtedness of any acquired entity existing immediately
after consummation of such acquisition or repaid or assumed by Holdings or
a Subsidiary in connection therewith) shall not exceed $300,000,000 or, if
at the time of and after giving pro forma effect to any such Permitted
Acquisition, the Pro Forma Leverage Ratio would be less than 5.00 to 1.00,
$450,000,000;
(h) investments (including debt obligations and equity
securities) received in connection with the bankruptcy or reorganization
of, or settlement of delinquent accounts and disputes with, customers and
suppliers, in each case in the ordinary course of business;
(i) extensions of trade credit in the ordinary course of
business;
(j) Investments consisting of non-cash consideration received in
respect of sales, transfers or other dispositions of assets to the extent
permitted by Section 6.05;
(k) Swap Agreements entered into in compliance with Section 6.07;
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(l) loans and advances by the Borrower and any of its
Subsidiaries to their employees or to Associated Employees in the ordinary
course of business and for bona fide business purposes in an aggregate
amount at any time outstanding not in excess of $15,000,000;
(m) Investments consisting of Sellers' Retained Interests in
Securitizations permitted by Section 6.05; and
(n) Investments in Unrestricted Subsidiaries and any other Person
(other than Foreign Subsidiaries) made with Designated Equity Proceeds or,
to the extent not made with Designated Equity Proceeds, in an aggregate
amount at any time outstanding not in excess of $75,000,000.
Section 6.05 Asset Sales. The Borrower will not, and will not permit
any of its Subsidiaries to, sell, transfer, lease or otherwise dispose of any
asset, including any Equity Interest owned by it and any sale of Securitization
Assets in connection with a Securitization, nor will the Borrower permit any of
it Subsidiaries to issue any additional Equity Interest in such Subsidiary,
except:
(a) sales of (x) inventory and (y) used, surplus, obsolete or
worn-out equipment and Permitted Investments in the ordinary course of
business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; provided that any such sales, transfers or dispositions
involving a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.09;
(c) sales of receivables on substantially the same terms that
receivables are purchased by Qwest Corp. pursuant to the Billing and
Collection Agreement as in effect on the Original Closing Date prior to
November 1, 2004, and thereafter as in effect on November 1, 2004,
including sales of receivables pursuant to and in accordance with the
Billing and Collection Agreement;
(d) sale and leaseback transactions permitted by Section 6.06;
(e) Permitted Asset Swaps;
(f) sales, transfers and dispositions of any Equity Interests in
any Unrestricted Subsidiary to Persons other than the Parent, Holdings, the
Borrower or any Subsidiary;
(g) sales of Securitization Assets to one or more Securitization
Vehicles in Securitizations; provided that (i) each such Securitization is
effected on market terms as reasonably determined by the management of the
Borrower, (ii) the aggregate amount of Third Party Interests in respect of
all such Securitizations does not exceed $232,000,000 at any time
outstanding, (iii) the proceeds to each such Securitization Vehicle from
the issuance of Third Party Interests are applied substantially
simultaneously with receipt thereof to the purchase from the Borrower or
Subsidiaries of Securitization Assets and an amount equal to 100% of the
Net Proceeds from each such Securitization is applied to the mandatory
repayment of Term Loans in accordance with Section 2.11(c) and (iv) the
Equity Interests and Sellers' Retained Interests in respect of each such
Securitization Vehicle shall be pledged to the Collateral Agent under the
Collateral Agreement;
(h) sales, transfers and other dispositions of assets (other than
Equity Interests in a Subsidiary) that are not permitted by any other
clause of this Section; provided that the aggregate
68
cumulative fair market value of all assets sold, transferred or otherwise
disposed of after the Original Closing Date in reliance upon this clause
(h) shall not exceed $300,000,000; and
(i) sales, transfers and other dispositions of assets utilized in
connection with Shared Services Assets and Operations to RHD Corp. or
a subsidiary thereof in connection with the provision by RHD Corp. or
such subsidiary of Shared Services;
provided that (x) all sales, transfers, leases and other dispositions permitted
hereby (other than pursuant to clauses (a)(y), (b) and (e) above) shall be made
for at least 75% cash consideration or, in the case of Permitted Investments,
sales of receivables or sale and leaseback transactions, 100% cash
consideration, and (y) all sales, transfers, leases and other dispositions
permitted by clauses (a) and (h) above shall be made for fair value.
Section 6.06 Sale and Leaseback Transactions. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred, except (a) for the Headquarters Sale-Leaseback and any
other such sale of any fixed or capital assets that is made for cash
consideration in an amount not less than the cost of such fixed or capital asset
and is consummated within 90 days after the Borrower or such Subsidiary acquires
or completes the construction of such fixed or capital asset and (b) in each
case, to the extent all Capital Lease Obligations, Attributable Debt and Liens
associated with such sale and leaseback transaction are permitted by Section
6.01(a)(vii) and Section 6.02(a)(v) (treating the property subject thereto as
being subject to a Lien securing the related Attributable Debt, in the case of a
sale and leaseback not accounted for as a Capital Lease Obligation).
Section 6.07 Swap Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements required by Section 5.14, (b) Swap Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the Borrower
or any Subsidiary has actual exposure (other than those in respect of Equity
Interests of the Borrower or any of its Subsidiaries) in the conduct of its
business or the management of its liabilities, (c) Swap Agreements required by
any Securitization and (d) Swap Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from one
floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.
Section 6.08 Restricted Payments; Certain Payments of Indebtedness.
(a) Neither Holdings nor the Borrower will, nor will they permit any Subsidiary
to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except (i) Holdings may declare and pay dividends with respect to its capital
stock payable solely in additional shares of its common stock, (ii) Subsidiaries
of the Borrower may declare and pay dividends ratably with respect to their
capital stock, (iii) Holdings and the Borrower may make Restricted Payments
pursuant to and in accordance with stock option plans or other benefit plans for
management, employees or Associated Employees (including former employees and
former Associated Employees) of Holdings, the Borrower and its Subsidiaries;
provided that the amount thereof, taken together with any payments or transfers
of cash, assets or debt securities pursuant to clause (f) of Section 6.09, do
not exceed $15,000,000 in any fiscal year, (iv) provided no Event of Default is
continuing or would result therefrom, the Borrower may pay dividends to Holdings
(x) within the 30-day period prior to any payment date for interest on Permitted
Holdings Debt and any Put Financing Indebtedness of Holdings (contingent or
otherwise) in the amount of such interest payment and (y) at any time in such
amounts as may be necessary to permit Holdings to pay its expenses and
liabilities incurred in the ordinary course
69
(other than payments in respect of Indebtedness or Restricted Payments), (v)
provided no Event of Default is continuing or would result therefrom, the
Borrower may make Restricted Payments to Holdings, and Holdings may, in turn,
make such Restricted Payments to the Parent, (A) in an aggregate amount not to
exceed $12,500,000 during any fiscal year of the Borrower and (B) so long as the
Pro Forma RP Coverage Ratio is not less than 1.05 to 1.00 and, if on the date of
such Restricted Payment the Pro Forma Leverage Ratio is less than 5.00 to 1.00,
in an aggregate amount not to exceed the Borrower's Portion of Excess Cash Flow
for the immediately preceding fiscal year of the Borrower less the amount of any
other Designated Excess Cash Expenditures made with such Borrower's Portion of
Excess Cash Flow, (vi) Restricted Payments in amounts as shall be necessary to
make Tax Payments to the extent not disallowed by Section 6.14; provided that
all Restricted Payments made pursuant to this clause (vi) are used by the Parent
or Holdings for the purpose specified in clause (vi) within 30 days of receipt
thereof, (vii) provided that no Event of Default is continuing or would result
therefrom, the Borrower may pay dividends to Holdings, and Holdings may, in
turn, pay such dividends to the Parent to enable RHD Corp. to (A) repurchase its
common stock and (B) pay cash dividends on its common stock, in an aggregate
amount for the preceding clauses (A) and (B) during any fiscal year not to
exceed, if the Leverage Ratio (determined on a pro forma basis after giving
effect to such Restricted Payment) for the period of four consecutive fiscal
quarters most recently ended on or prior to the date of such Restricted Payment
is (w) greater than 4.00 to 1.0, 10% of Excess Cash Flow for the previous year,
(x) greater than 3.50 to 1.0 but less than or equal to 4.00 to 1.0, 20% of
Excess Cash Flow for the previous year, (y) greater than 3.00 to 1.0 but less
than or equal to 3.50 to 1.0, 30% of Excess Cash Flow for the previous year and
(z) less than 3.00 to 1.0, 50% of Excess Cash Flow for the previous year, (viii)
provided that no Event of Default is continuing or would result therefrom, the
Borrower may from time to time pay cash dividends to Holdings and Holdings may,
in turn, use the proceeds thereof to pay cash dividends to the Parent, in each
case in an amount not in excess of the regularly scheduled cash interest payable
during the next period of 30 days on any Put Financing Indebtedness of Parent
and any Qualifying Parent Indebtedness, provided, however, that (A) any such
dividends relating to any such cash interest payment must be paid not earlier
than 30 days prior to the date when such cash interest is required to be paid by
the Parent and the proceeds must (except to the extent prohibited by applicable
subordination provisions) be applied by the Parent to the payment of such
interest when due and (B) in the case of Qualifying Parent Indebtedness, no
payment of dividends may be made pursuant to this clause (viii) in respect of
the cash interest on such Indebtedness other than Base QPI unless the Interest
Coverage Ratio (determined on a pro forma basis after giving effect to such
dividend payment) for the period of four consecutive fiscal quarters most
recently ended on or prior to the date of such dividend payment is not less than
1.75 to 1.00, (ix) the Borrower may from time to time pay cash dividends to
Holdings and Holdings may, in turn, use the proceeds thereof to pay cash
dividends to the Parent, in each case in an amount not in excess of the amount
necessary to repurchase the Existing Parent Notes pursuant to the Change in
Control Offers, (x) provided that no Event of Default is continuing or would
result therefrom, the Borrower may from time to time pay cash dividends to
Holdings and Holdings may, in turn, use the proceeds thereof to pay cash
dividends to the Parent, in each case in an amount not in excess of the RHD
Allocable Share of regularly scheduled cash interest payable during the next
period of 30 days on the outstanding Indebtedness of RHD Corp., provided,
however, that (A) any such dividends relating to any such cash interest payment
must be paid not earlier than 30 days prior to the date when such cash interest
is required to be paid by RHD Corp. and the proceeds must (except to the extent
prohibited by applicable subordination provisions, if any) be applied by RHD
Corp. to the payment of such interest when due, (B) no payment of dividends may
be made pursuant to this clause (x) in respect of the RHD Allocable Share of
cash interest on such Indebtedness other than Base RHD Indebtedness unless the
Interest Coverage Ratio (determined on a pro forma basis after giving effect to
such dividend payment) for the period of four consecutive fiscal quarters most
recently ended on or prior to the date of such dividend payment is not less than
1.75 to 1.00 and (C) at the time of the incurrence of such Indebtedness (other
than Base RHD Indebtedness outstanding on the Restatement Effective Date), and
after giving effect thereto, the RHD Leverage Ratio shall not have exceeded 7.25
to 1.00, (xi) the Borrower may from time to time pay cash dividends to
70
Holdings and Holdings may, in turn, use the proceeds thereof to pay cash
dividends to the Parent, in each case in an amount not in excess of the proceeds
of the Tranche B-1 Term Loans made on or after the Restatement Effective Date,
provided, however, that such proceeds must be applied to consummate the Parent
Acquisition in accordance with the Merger Agreement, to redeem Existing Notes
pursuant to any Change in Control Offers and/or, in an amount not to exceed
$50,000,000, for general corporate purposes, and (xii) provided that no Event of
Default is continuing or would result therefrom, the Borrower may from time to
time pay cash dividends to Holdings and Holdings may, in turn, use the proceeds
thereof to pay cash dividends to the Parent in an aggregate amount not to exceed
$135,000,000; provided, however, that any such dividends are used solely to pay
(A) cash interest on any Indebtedness of RHD Corp., any Put Financing
Indebtedness of Parent or any Qualifying Parent Indebtedness, (B) Shared
Services Payments (notwithstanding the 30-day period payment requirement
contained in Section 6.22(c) or referred to in the definition thereof) or (C)
fees and expenses in connection with the Parent Acquisition.
(b) The Parent, Holdings and the Borrower will not, nor will they
permit any Subsidiary to, make or agree to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities
or other property) of or in respect of principal of or interest on any
Indebtedness, or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness (including any
Put Financing Indebtedness), other than payments in respect of the
Senior Subordinated Debt, Permitted Subordinated Indebtedness,
Qualifying Parent Indebtedness, Parent Non-Cash Pay Debt or other
subordinated Indebtedness prohibited by the subordination provisions
thereof;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing
such Indebtedness;
(v) prepayment of Capital Lease Obligations in an aggregate
cumulative amount from and after the Original Closing Date not
exceeding $7,500,000;
(vi) Optional Repurchases of other Indebtedness involving
cumulative expenditures in any fiscal year not in excess of an amount
equal to the Borrower's Portion of Excess Cash Flow for the
immediately preceding fiscal year less the amount of other Designated
Excess Cash Expenditures made with such Borrower's Portion of Excess
Cash Flow, provided, however, that on the date of each such Optional
Repurchase the Pro Forma Leverage Ratio is less than 5.00 to 1.00;
(vii) Optional Repurchases of other Indebtedness involving
expenditures in an amount not in excess of (x) that portion of the Net
Proceeds (or Allocable Net Proceeds, as the case may be) from any
Equity Issuance (or portion thereof) in respect of which the Required
Percentage is 50% which is not required to be applied to the
prepayment of Term Loans pursuant to Section 2.11(c) and (y) 50% of
the Net Proceeds (or Allocable Net Proceeds, as the case may be) from
any Equity Issuance (or portion thereof) in respect of which the
Required Percentage is 0%; provided, however, that (I) such Optional
Repurchases are effected within 180 days of the receipt of the Net
Proceeds (or Allocable Net Proceeds) from the relevant Equity Issuance
and
71
(II) in the case of Optional Repurchases made pursuant to clause (y),
the Borrower makes the related mandatory prepayment of Term Borrowings
required by Section 2.11(e); and
(viii) repurchases of the Existing Notes pursuant to the Change
in Control Offers.
(c) The Parent, Holdings and the Borrower will not, and will not
permit any Subsidiary to, furnish any funds to, make any Investment in, or
provide other consideration to any other Person (including an Unrestricted
Subsidiary) for purposes of enabling such Person to, or otherwise permit
any such Person to, make any Restricted Payment or other payment or
distribution restricted by this Section that could not be made directly by
Holdings or the Borrower in accordance with the provisions of this Section.
Section 6.09 Transactions with Affiliates. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) transactions that do not involve Holdings or any
of its subsidiaries that are not Subsidiaries and are at prices and on terms and
conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties; provided that
such transactions, if not in the ordinary course of business, are set forth in
writing and have been approved by a majority of the members of the Governing
Board of the Borrower having no personal stake in such transactions, and, if
such transaction involves an amount in excess of $20,000,000, has been
determined by a nationally recognized appraisal or investment banking firm to be
fair, from a financial standpoint, to the Borrower and its Subsidiaries, (b)
transactions between or among the Borrower and the Subsidiary Loan Parties not
involving any other Affiliate, (c) any Restricted Payment permitted by Section
6.08, (d) the sale of receivables on substantially the same terms that the
Borrower Receivables are purchased by Qwest Corp. pursuant to the Billing and
Collection Agreement as in effect on the Original Closing Date or on or before
November 1, 2004, and thereafter as in effect on November 1, 2004, (e) the
payment of reasonable fees to directors of Holdings or the Borrower who are not
employees of the Borrower or any of its Subsidiaries, (f) any issuance of
securities, or other payments, awards or grants in cash, securities or otherwise
pursuant to, or the funding of, employment arrangements, stock options and stock
ownership plans or similar employee benefit plans for employees or Associated
Employees of the Borrower and its Subsidiaries, which, in each case, have been
approved by the Governing Board of the Borrower, provided that any payments of
cash or transfers of debt securities or assets pursuant to this clause (f),
taken together with Restricted Payments pursuant to Section 6.08(a)(iii), shall
not exceed $15,000,000 in any fiscal year of the Borrower, (g) the existence of,
or performance by the Borrower or any of its Subsidiaries of its obligations
under the terms of, any tax sharing agreement permitted under Section 6.14 to
which it is a party as of the Original Closing Date, (h) Shared Services
Payments made to the Parent and/or RHD Corp. not less frequently than quarterly
pursuant to procedures (including procedures for allocating reimbursable costs)
approved as being fair and reasonable by a majority of the members of the
Governing Board of the Borrower, (i) transfers of assets utilized in connection
with Shared Services Assets and Operations to RHD Corp. (or a subsidiary of RHD
Corp.) in connection with the provision of Shared Services by RHD Corp. or such
subsidiary to RHD Inc. and/or Parent and their respective subsidiaries, (j)
transactions between RHD Inc. and/or its Subsidiaries, on the one hand, and the
Borrower and/or its Subsidiaries, on the other hand, for which the reimbursement
or consideration or represents an allocation on a fair and reasonable basis to
such person, provided that, such allocation represents an amount no less than
cost, (k) transactions under the Employee Cost Sharing Agreement, including
payments thereunder to the East Borrower or to the Employee Company in respect
of Associated Employees, (l) sales of Securitization Assets to Securitization
Vehicles and other transactions effected as part of Securitizations permitted by
Section 6.05 and (m) arrangements pursuant to which payments by Qwest for
advertising in directories that were committed to be made in connection
72
with the West Acquisition and the acquisition by the East Borrower of Qwest's
directories services business in the East Territories are allocated
approximately 58% to the Borrower and approximately 42% to the East Borrower
(without regard to the directories in which such advertising is actually
placed).
Section 6.10 Restrictive Agreements. Neither Holdings nor the Borrower
will, nor will they permit any Subsidiary to, directly or indirectly, enter
into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the ability of Holdings,
the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon
any of its property or assets to the Secured Parties securing the Obligations,
or (b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of
the Borrower or any other Subsidiary; provided that (i) the foregoing shall not
apply to restrictions and conditions imposed by law or by any Loan Document,
Senior Subordinated Debt Document or Senior Unsecured Debt Document (ii) the
foregoing shall not apply to restrictions and conditions existing on the date
hereof identified on Schedule 6.10 (but shall apply to any extension or renewal
of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to any Put Financing, any Qualifying Parent
Indebtedness, any Parent Non-Cash Pay Debt, any Permitted Holdings Debt or any
indebtedness of RHD Corp., (v) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and the proceeds
thereof, (vi) clause (a) of the foregoing shall not apply to customary
provisions in leases restricting the assignment thereof, (vii) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any agreement
related to any Indebtedness incurred by a Subsidiary prior to the date on which
such Subsidiary was acquired by Holdings (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (viii) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement related to the refinancing
of Indebtedness, provided that the terms of any such restrictions or conditions
are not materially less favorable to the Lenders than the restrictions or
conditions contained in the predecessor agreements, (ix) the foregoing shall not
apply to customary restrictions contained in any documents relating to any
Securitizations, provided that such restrictions only apply to the applicable
Securitization Vehicle and its assets and (x) the foregoing shall not apply to
customary provisions in joint venture agreements.
Section 6.11 Change in Business. Each of Holdings and the Borrower
will not, and will not permit any Subsidiary to, engage at any time in any
business or business activity other than a Permitted Business. Without limiting
the foregoing, Holdings shall not engage in any business or conduct any activity
other than holding the capital stock of the Borrower, and activities reasonably
related thereto.
Section 6.12 Fiscal Year. Each of Holdings and the Borrower shall not
change its fiscal year for accounting and financial reporting purposes to end on
any date other than December 31.
Section 6.13 Amendment of Material Documents. (a) Neither Holdings nor
the Borrower will, nor will they permit any Subsidiary to, amend, modify or
waive any of its rights under (i) any Senior Subordinated Debt Document, (ii)
any Senior Unsecured Debt Document, (iii) the Employee Cost Sharing Agreement,
(iv) the written agreement relating to licenses and sublicenses of intellectual
property by Parent to Borrower and the East Borrower or (v) its certificate of
incorporation, by-laws or other organizational documents if, taken as a whole,
such amendment, modification or waiver is adverse in any material respect to the
interests of the Lenders.
73
(b) Neither Holdings nor the Borrower will, nor will they permit
the Parent or any Subsidiary to, amend, modify, waive or terminate any of
its rights under (i) the West Acquisition Agreement or any of the Core
Qwest Agreements, (ii) the tax sharing agreement described in Section 6.14
or (iii) the Parent Acquisition Agreement, in the case of clauses (i) and
(ii) above to the extent that, taken as a whole, such amendment,
modification, waiver or termination is adverse in any material respect to
the interests of the Lenders and in the case of clause (iii) above, in a
manner that is material and adverse to the Lenders without the consent of
the Administrative Agent, such consent not to be unreasonably withheld or
delayed.
Section 6.14 Tax Payments. Except pursuant to a tax sharing agreement
having customary terms and conditions which has been approved by the Arrangers
(such approval not to be unreasonably withheld or delayed), Holdings and the
Borrower will not, and will not permit any Subsidiary to, (i) make payments in
respect of Applicable Taxes (whether owed by them or any other Person) in
amounts (in the aggregate for Holdings and the Subsidiaries) in excess of those
that would be payable by (or at times other than when such taxes would be
payable by) Holdings and the Subsidiaries as a separate consolidated group for
tax purposes or (ii) provide funds to the Parent or any Affiliates of the Parent
(other than Holdings and the Subsidiaries) for the payment of Applicable Taxes
of members of any consolidated tax group including the Parent or Holdings and
the Subsidiaries in amounts in excess of, or at times other than, those
permitted by clause (i) above.
Section 6.15 Interest Coverage Ratio. Holdings and the Borrower will
not permit the Interest Coverage Ratio as of the last day of a fiscal quarter
set forth below to be less than the ratio set forth below opposite such date:
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2006 1.50 to 1.00
June 30, 2006 1.50 to 1.00
September 30, 2006 1.50 to 1.00
December 31, 2006 1.50 to 1.00
March 31, 2007 1.50 to 1.00
June 30, 2007 1.50 to 1.00
September 30, 2007 1.50 to 1.00
December 31, 2007 1.50 to 1.00
March 31, 2008 1.50 to 1.00
June 30, 2008 1.50 to 1.00
September 30, 2008 1.50 to 1.00
December 31, 2008 1.50 to 1.00
March 31, 2009 1.50 to 1.00
June 30, 2009 1.50 to 1.00
September 30, 2009 1.50 to 1.00
December 31, 2009 1.50 to 1.00
Section 6.16 [Reserved].
Section 6.17 Leverage Ratio. Holdings and the Borrower will not permit
the Leverage Ratio as of the last day of a fiscal quarter set forth below to
exceed the ratio set forth opposite such date:
74
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2006 6.50 to 1.00
June 30, 2006 6.50 to 1.00
September 30, 2006 6.50 to 1.00
December 31, 2006 6.00 to 1.00
March 31, 2007 6.00 to 1.00
June 30, 2007 6.00 to 1.00
September 30, 2007 6.00 to 1.00
December 31, 2007 5.50 to 1.00
March 31, 2008 5.50 to 1.00
June 30, 2008 5.50 to 1.00
September 30, 2008 5.50 to 1.00
December 31, 2008 5.00 to 1.00
March 31, 2009 5.00 to 1.00
June 30, 2009 5.00 to 1.00
September 30, 2009 5.00 to 1.00
December 31, 2009 4.75 to 1.00
Section 6.18 Senior Secured Leverage Ratio. Holdings and the Borrower
will not permit the Senior Secured Leverage Ratio as of the last day of a fiscal
quarter set forth below to exceed the ratio set forth opposite such date:
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 2006 4.50 to 1.00
June 30, 2006 4.50 to 1.00
September 30, 2006 4.50 to 1.00
December 31, 2006 4.50 to 1.00
March 31, 2007 4.50 to 1.00
June 30, 2007 4.50 to 1.00
September 30, 2007 4.50 to 1.00
December 31, 2007 4.00 to 1.00
March 31, 2008 4.00 to 1.00
June 30, 2008 4.00 to 1.00
September 30, 2008 4.00 to 1.00
December 31, 2008 3.75 to 1.00
March 31, 2009 3.75 to 1.00
June 30, 2009 3.75 to 1.00
September 30, 2009 3.75 to 1.00
December 31, 2009 3.50 to 1.00
Section 6.19 [Reserved].
Section 6.20 Collections, Funds and Permitted Investments. Holdings
and the Borrower (a) will at all times cause all payments in respect of accounts
receivable of the Borrower and the Subsidiaries (including but not limited to
purchase price payments under the Billing and Collection
75
Agreement) and all other cash payments to or for the benefit of the Borrower and
the Subsidiaries (collectively, "Receipts") to be deposited directly into bank
accounts (including lockbox accounts) in respect of which no Affiliate of the
Borrower (other than a Subsidiary Loan Party or, in the case of funds of Foreign
Subsidiaries, Foreign Subsidiaries) has any interest or claim (collectively,
"Borrower Bank Accounts") and (b) will not cause or permit Receipts to be
commingled at any time with funds owned (beneficially or otherwise) by, or
subject to claims of, any Affiliate of the Borrower other than a Subsidiary Loan
Party or, in the case of Receipts of Foreign Subsidiaries, Foreign Subsidiaries
(including without limitation, the Parent or any subsidiary of the Parent other
than the Borrower and its Subsidiaries). Holdings and the Borrower will at all
times cause all cash and Permitted Investments owned or held by Holdings, the
Borrower or any Subsidiary to be held only in Borrower Bank Accounts and in
securities accounts over which no Affiliate of the Borrower (other than a
Subsidiary Loan Party or, in the case of cash and Permitted Investments of
Foreign Subsidiaries, Foreign Subsidiaries) has any interest or claim.
Section 6.21 Employee Outsourcing Arrangements. In the event of any
bankruptcy or insolvency of the East Borrower while the Employee Cost Sharing
Agreement is in effect, the Borrower will, unless the Required Lenders otherwise
consent, use its commercially reasonable efforts (including by exercising such
rights as are legally available to it under such agreement) to directly employ
all Associated Employees as soon as practicable.
Section 6.22 Parent Covenants. (a) The Parent will not engage in any
business or activity other than the ownership of outstanding shares of capital
stock of Holdings and East Holdings, the issuance and sale of its common stock,
Non-Cash Pay Preferred Stock, Parent Non-Cash Pay Debt, any Put Financing
Indebtedness and, to the extent permitted hereby, Qualifying Parent
Indebtedness, the ownership of Shared Services Assets and Operations, the
provision of Shared Services and, in each case, activities incidental thereto.
The Parent will not own or acquire any assets (other than shares of capital
stock of Holdings and East Holdings, assets constituting Shared Services Assets
and Operations, cash and Permitted Investments) or incur any liabilities (other
than Parent Non-Cash Pay Debt, any Put Financing Indebtedness and, to the extent
permitted hereby, Qualifying Parent Indebtedness, ordinary course trade
payables, employee compensation liabilities (including, without limitation,
loans and advances to employees in the ordinary course of business) and other
liabilities incurred in the ordinary course in connection with the provision of
Shared Services by the Parent or any subsidiary of the Parent, liabilities under
the Loan Documents, liabilities under the East Credit Facilities substantially
equivalent to those under Section 6.22(b), liabilities imposed by law, including
tax liabilities, and other liabilities incidental to the maintenance of its
existence and permitted activities). The Parent will not create, incur, assume
or permit to exist any Lien on any property or assets now owned or hereafter
acquired by it, other than Permitted Encumbrances. The Parent shall not in any
event incur or permit to exist any Indebtedness for borrowed money other than
(i) Parent Non-Cash Pay Debt, (ii) any Put Financing Indebtedness and (iii)
Qualifying Parent Indebtedness; provided, however, that in the case of
Qualifying Parent Indebtedness, other than Initial Base QPI, the QPI Issuance
Conditions are satisfied at the time of any such issuance of Qualifying Parent
Indebtedness; provided, further, however, that notwithstanding any other
provision of this Agreement or any other Loan Document, it is expressly
understood and agreed that the Parent shall not be personally liable under the
Parent Pledge Agreement and the Agent on behalf of itself and each Secured Party
agrees to look solely to the Pledged Collateral (as defined in the Parent Pledge
Agreement) for satisfaction of the Parent's obligations under the Parent Pledge
Agreement.
(b) In the event and on each occasion that the Parent receives
any West Acquisition Agreement Recovery, it will, not later than five
Business Days after receipt thereof, contribute the full amount of such
West Acquisition Agreement Recovery to the common capital of Holdings
(unless such amount shall have previously been contributed to the common
capital of East Holdings pursuant to Section 6.21(b) of the East Credit
Agreement), or utilize the full amount of such West Acquisition
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Agreement Recovery to purchase Equity Interests of Holdings (or the Equity
Interests of East Holdings pursuant to Section 6.21(b) of the East Credit
Agreement). Promptly after receiving the proceeds of any capital
contribution from, or from the purchase of its Equity Interests by, the
Parent pursuant to this paragraph, Holdings will contribute the full amount
thereof to the common capital of the Borrower. Promptly after receiving
payment from any East Entity with respect to the provision by Holdings or
any of its subsidiaries of Shared Services to any East Entity, Parent will
contribute the full amount of such payment to the common capital of
Holdings and, if such Shared Services were performed by a subsidiary of
Holdings, Holdings will contribute such amount to the Borrower.
(c) The Parent will ensure that any Shared Services Payments made
by the Borrower or its Subsidiaries to the Parent represent only
reimbursement for cash expenses actually incurred by the Parent or RHD
Corp., as the case may be, or any of their respective subsidiaries (other
than Holdings, RHD Inc. or any of their respective subsidiaries) (including
accrued costs payable in cash by the Parent or RHD Corp., as the case may
be, or any of their respective subsidiaries (other than Holdings, RHD Inc.
or any of their respective subsidiaries) within the 30-day period after its
receipt of a Shared Services Payment) that are directly attributable to the
provision of Shared Services to the Borrower and its Subsidiaries or, if
not directly attributable to such Shared Services, are not directly
attributable to Shared Services provided to any other Persons and represent
a fair and equitable allocation of such out-of-pocket expenses that are not
so directly attributable among the Borrower and the Subsidiaries, on the
one hand, and all other Persons, on the other hand, to which the Parent or
RHD Corp., as the case may be, or any of their respective subsidiaries
(other than Holdings, RHD Inc. or any of their respective subsidiaries)
provides Shared Services (including the East Borrower and its subsidiaries
(including "unrestricted subsidiaries" permitted by the East Credit
Facilities) and any Unrestricted Subsidiaries). Shared Services Payments
will not in any event include payments in respect of trade payables
incurred in connection with the conduct of the Permitted Businesses of the
Borrower and the Subsidiaries (including, for example, payables relating to
printing costs, distribution costs, and costs of inventory, paper and other
raw materials), which shall be incurred and paid directly by the Borrower
and the Subsidiaries (it being understood, however, that trade payables of
the Parent or RHD Corp., as the case may be, or any of their respective
subsidiaries (other than Holdings, RHD Inc. or any of their respective
subsidiaries) incurred in the ordinary course relating to assets included
in the Shared Services Assets and Operations or the provision of Shared
Services may be incurred by the Parent or RHD Corp., as the case may be, or
any of their respective subsidiaries (other than Holdings, RHD Inc. or any
of their respective subsidiaries) and reimbursed as Shared Services
Payments in accordance herewith). The Parent will invoice the Borrower and
the Subsidiaries for Shared Services Payments on a periodic basis, not less
frequently than quarterly. The Parent will from time to time provide the
Administrative Agent with such analyses and other information regarding
Shared Services Payments, including with respect to attributions and
allocations of costs and expenses to the Borrower and the Subsidiaries, as
the Administrative Agent may reasonably request.
Section 6.23 Designation of Unrestricted Subsidiaries. (a) Holdings
may not designate any Subsidiary as an Unrestricted Subsidiary and Holdings may
after the Original Closing Date designate any other newly formed or acquired
subsidiary as an Unrestricted Subsidiary under this Agreement (a "Designation")
only if:
(i) such subsidiary does not own any Equity Interests of any
Subsidiary;
(ii) no Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(iii) after giving effect to such Designation and any related
Investment to be made in such designated subsidiary by Holdings or any
Subsidiary (which shall in any event include any
77
existing Investment in such Person at the time it is designated as an
Unrestricted Subsidiary), (A) any such existing Investment and related
Investment would comply with Section 6.04 and (B) Holdings and the
Subsidiaries would be in compliance with each of the Financial
Covenants, calculated on a pro forma basis as if such Designation and
Investment had occurred immediately prior to the first day of the
period of four consecutive fiscal quarters most recently ended; and
(iv) Holdings has delivered to the Administrative Agent (A)
written notice of such Designation and (B) a certificate, dated the
effective date of such Designation, of a Financial Officer stating
that no Event of Default has occurred and is continuing and setting
forth reasonably detailed calculations demonstrating pro forma
compliance with the Financial Covenants in accordance with paragraph
(iii) above.
(b) Neither Holdings nor any Subsidiary shall at any time (i)
provide a Guarantee of any Indebtedness of any Unrestricted Subsidiary,
(ii) be directly or indirectly liable for any Indebtedness of any
Unrestricted Subsidiary or (iii) be directly or indirectly liable for any
other Indebtedness which provides that the holder thereof may (upon notice,
lapse of time or both) declare a default thereon (or cause such
Indebtedness or the payment thereof to be accelerated, payable or subject
to repurchase prior to its final scheduled maturity) upon the occurrence of
a default with respect to any other Indebtedness that is Indebtedness of an
Unrestricted Subsidiary, except in the case of clause (i) or (ii) to the
extent permitted under Section 6.01 and 6.04 hereof. Each Designation shall
be irrevocable, and no Unrestricted Subsidiary may become a Subsidiary, be
merged with or into Holdings or any Subsidiary or liquidate into or
transfer substantially all its assets to Holdings or any Subsidiary.
Section 6.24 Commingling of Accounts. Each of Holdings and the
Borrower will not, nor will it cause or permit any Subsidiary to, commingle
amounts relating to Securitization Assets sold pursuant to a Securitization with
cash or any other amounts of Holdings, the Borrower and the Subsidiaries other
than the temporary commingling of collections on and proceeds of any accounts
receivable or related assets of the Borrower and its Subsidiaries, in each case
as may be necessary to identify and sort such collections and proceeds.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Parent, Holdings, the Borrower or any Subsidiary in or in connection
with any Loan Document or any amendment or modification thereof or waiver
thereunder, or in any certificate furnished pursuant to or in connection
with any Loan Document or any amendment or modification thereof
78
or waiver thereunder, shall prove to have been incorrect in any material
respect when made or deemed made;
(d) the Parent, Holdings or the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Section 5.02,
5.04 (with respect to the existence of Holdings or the Borrower), 5.11 or
in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will promptly be
given at the request of any Lender);
(f) Holdings, the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in
respect of any Material Indebtedness, when and as the same shall become due
and payable (after giving effect to any applicable grace period specified
in the agreement or instrument governing such Indebtedness);
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g) (i)
shall not apply to (A) secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness and (B) repurchases of the Existing Notes pursuant to the
Change in Control Offers and (ii) shall give effect to any notice required
or grace period provided in the agreement or instrument governing such
relevant Material Indebtedness, but shall not give effect to any waiver
granted by the holders of such relevant Material Indebtedness after the
giving of such notice or during such applicable grace period;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of Holdings, the Borrower or any Material Subsidiary or
its debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Holdings, the
Borrower or any Subsidiary or for a substantial part of its assets, and, in
any such case, such proceeding or petition shall continue undismissed for
60 days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) Holdings, the Borrower or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state or
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for Holdings, the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding that would entitle the other party or parties to an order
for relief, (v) make a general assignment for the benefit of creditors or
(vi) take any action for the purpose of effecting any of the foregoing;
79
(j) one or more judgments for the payment of money in an aggregate
amount in excess of $20,000,000 (net of amounts covered by insurance) shall
be rendered against Holdings, the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of
30 consecutive days during which execution shall not be effectively stayed,
or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of Holdings, the Borrower or any Subsidiary to enforce
any such judgment;
(k) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(l) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral having, in the aggregate, a value in
excess of $15,000,000, with the priority required by the applicable
Security Document, except (i) as a result of the sale or other disposition
of the applicable Collateral in a transaction permitted under the Loan
Documents or (ii) as a result of the Agent's failure to maintain possession
of any stock certificates, promissory notes or other instruments delivered
to it under the Collateral Agreement;
(m) a Change in Control shall occur;
(n) any Guarantee under the Collateral Agreement for any reason shall
cease to be in full force and effect (other than in accordance with its
terms), or any Guarantor shall assert in writing that the Collateral
Agreement or any Guarantee thereunder has ceased to be or is not
enforceable; or
(o) the material breach of, or loss of rights under, any Core Qwest
Agreement that has resulted in a material adverse effect on the business,
operations, assets, liabilities, financial condition or results of
operations of Holdings, the Borrower and its Subsidiaries, taken as a
whole;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may with the
consent of the Required Lenders, and at the request of the Required Lenders
shall, by notice to the Borrower, take either or both of the following actions,
at the same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole, and thereupon the principal of the
Loans so declared to be due and payable, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower; and in
case of any event with respect to the Borrower described in clause (h) or (i) of
this Article, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically
become due and payable, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.
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ARTICLE VIII
THE AGENT
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Agent as its agent and authorizes the Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Agent by the terms of
the Loan Documents, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Agent, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
Holdings, the Borrower or any Subsidiary or other Affiliate thereof as if it
were not the Agent hereunder.
The Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality of
the foregoing, (a) the Agent shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except discretionary rights and powers
expressly contemplated by the Loan Documents that the Agent is required to
exercise in writing as directed by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02), and (c) except as expressly set forth in the Loan
Documents, the Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Parent,
Holdings, the Borrower or any of its Subsidiaries that is communicated to or
obtained by the bank serving as Agent or any of its Affiliates in any capacity
(other than as Agent). The Agent shall not be liable for any action taken or not
taken by it with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Agent shall be deemed not to have knowledge
of any Default unless and until written notice thereof is given to the Agent by
Holdings, the Borrower or a Lender, and the Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Agent.
The Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. The Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by the Agent. The
Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties.
81
The exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as Agent.
Subject to the appointment and acceptance of a successor to the Agent
as provided in this paragraph, the Agent may resign at any time by notifying the
Lenders, the Issuing Bank and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, with the consent of the Borrower (such
consent not to be unreasonably withheld or delayed and such consent not to be
required if an Event of Default under clause (a), (b), (h) or (i) of Article VII
has occurred and is continuing), to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Agent and Collateral Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while it was acting as Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agent or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or related agreement
or any document furnished hereunder or thereunder.
Each party hereto authorizes the Agent to enter into customary
intercreditor agreements in connection with Securitizations permitted under this
Agreement.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(i) if to Holdings or the Borrower, to it at Dex Media West,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Attention
of Chief Executive Officer (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(ii) if to the Agent, to JPMorgan Chase Bank, N.A., Loan and
Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇▇▇ ▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to
JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
82
(iii) if to the Issuing Bank or the Swingline Lender, to JPMorgan
Chase Bank, N.A., Loan and Agency Services Group, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇ (Telecopy No.
(▇▇▇) ▇▇▇-▇▇▇▇), with a copy to JPMorgan Chase Bank, N.A., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇ ▇▇▇▇▇ (Telecopy
No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(iv) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders hereunder may
be delivered or furnished by electronic communications pursuant to
procedures approved by the Administrative Agent; provided that the
foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. The
Administrative Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
(c) Any party hereto may change its address or telecopy number
for notices and other communications hereunder by notice to the other
parties hereto. All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed
to have been given on the date of receipt.
Section 9.02 Waivers; Amendments. (a) No failure or delay by the
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agent, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by any Loan Party therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of this
Section, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan or issuance of a Letter of Credit shall not
be construed as a waiver of any Default, regardless of whether the Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in
writing entered into by Holdings, the Borrower and the Required Lenders or,
in the case of any other Loan Document, pursuant to an agreement or
agreements in writing entered into by the Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the
Required Lenders; provided that no such agreement shall (i) increase the
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or LC Disbursement held by any
Lender or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of such Lender, (iii) postpone the
maturity of any Lender's Loan, or any scheduled date of payment of the
principal amount of any Lender's Term Loan under Section 2.10, or the
required date of reimbursement of any LC Disbursement held by any Lender,
or any date for the payment of any interest or fees payable to any Lender
hereunder, or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date of expiration of any Commitment, without the
written consent of such Lender, (iv) change Section 2.18(b) or Section
2.18(c) in a manner that would alter the pro rata sharing of payments
required thereby or change the
83
last sentence of Section 2.08(c) in a manner which would alter the pro rata
reduction of Commitments thereby, without the written consent of each
Lender, (v) change any of the provisions of this Section or the definition
of "Required Lenders" or any other provision of any Loan Document
specifying the number or percentage of Lenders (or Lenders of any Class)
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder, without the written consent
of each Lender (or each Lender of such Class, as the case may be), (vi)
release Holdings or any Subsidiary Loan Party from its Guarantee under the
Collateral Agreement (except as expressly provided in the Collateral
Agreement), or limit its liability in respect of such Guarantee, without
the written consent of each Lender, (vii) release all or any substantial
part of the Collateral from the Liens of the Security Documents, without
the written consent of each Lender, (viii) change any provisions of any
Loan Document in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently
than those holding Loans of any other Class, without the written consent of
Lenders holding a majority in interest of the outstanding Loans and unused
Commitments of each affected Class or (ix) limit the rights of the Tranche
B Lenders or Tranche B-1 Lenders to decline mandatory prepayments as
provided in Section 2.11, without the written consent of Tranche B Lenders
or Tranche B-1 Lenders, as the case may be, holding a majority of the
outstanding Tranche B Loans or Tranche B-1 Loans, as the case may be;
provided, further that (A) no such agreement shall amend, modify or
otherwise affect the rights or duties of the Agent, the Issuing Bank or the
Swingline Lender without the prior written consent of the Agent, the
Issuing Bank or the Swingline Lender, as the case may be, and (B) any
waiver, amendment or modification of this Agreement that by its terms
affects the rights or duties under this Agreement of the Revolving Lenders
(but not the Tranche A Lenders, Tranche B Lenders and Tranche B-1 Lenders),
the Tranche A Lenders (but not the Revolving Lenders, Tranche B Lenders and
Tranche B-1 Lenders), the Tranche B Lenders (but not the Revolving Lenders,
Tranche A Lenders and Tranche B-1 Lenders) or the Tranche B-1 Lenders (but
not the Revolving Lenders, the Tranche A Lenders and the Tranche B Lenders)
may be effected by an agreement or agreements in writing entered into by
Holdings, the Borrower and requisite percentage in interest of the affected
Class of Lenders that would be required to consent thereto under this
Section if such Class of Lenders were the only Class of Lenders hereunder
at the time. Notwithstanding the foregoing, any provision of this Agreement
may be amended by an agreement in writing entered into by Holdings, the
Borrower, the Required Lenders and the Agent (and, if their rights or
obligations are affected thereby, the Issuing Bank and the Swingline
Lender) if (i) by the terms of such agreement the Commitment of each Lender
not consenting to the amendment provided for therein shall terminate upon
the effectiveness of such amendment and (ii) at the time such amendment
becomes effective, each Lender not consenting thereto receives payment in
full of the principal of and interest accrued on each Loan made by it and
all other amounts owing to it or accrued for its account under this
Agreement.
(c) If, in connection with any proposed change, waiver, discharge
or termination of or to any of the provisions of this Agreement as
contemplated by clauses (i) through (ix), inclusive, of the first proviso
to Section 9.02(b), the consent of Lenders having Revolving Exposures, Term
Loans and unused Commitments representing more than 66-2/3% of the sum of
the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time is obtained but the consent of one or more of such
other Lenders whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clause
(i) or (ii) below, to either (i) replace each such non-consenting Lender or
Lenders (or, at the option of the Borrower if any such Lender's consent is
required with respect to less than all Classes of Loans (or related
Commitments), to replace only the Commitments and/or Loans of any such
non-consenting Lender that gave rise to the need to obtain such Lender's
individual consent) with one or more assignees pursuant to, and with the
effect of an assignment under, Section 2.19 so long as at the time of such
replacement, each such assignee consents to the proposed change, waiver,
discharge or termination or (ii) terminate such non-consenting Lender's
Commitment
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(if such Lender's consent is required as a result of its Commitment) and/or
repay each Class of outstanding Loans of such Lender that gave rise to the
need to obtain such Lender's consent and/or cash collateralize its LC
Exposure, in accordance with Section 2.05(j); provided (A) that, unless the
Commitments that are terminated and Loans that are repaid pursuant to the
preceding clause (ii) are immediately replaced in full at such time through
the addition of new Lenders or the increase of the Commitments and/or
outstanding Loans of existing Lenders (who in each case must specifically
consent thereto), then in the case of any action pursuant to the preceding
clause (ii), Lenders having Revolving Exposures, Term Loans and unused
Commitments representing more than 66-2/3% of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at such
time (determined after giving effect to the proposed action) shall
specifically consent thereto and (B) any such replacement or termination
transaction described above shall be effective on the date notice is given
of the relevant transaction and shall have a settlement date no earlier
than five Business Days and no later than 90 days after the relevant
transaction; provided further that the Borrower shall not have the right to
replace a Lender, terminate its Commitment or repay its Loans solely as a
result of the exercise of such Lender's rights (and the withholding of any
required consent by such Lender) pursuant to the second proviso to Section
9.02(b).
Section 9.03 Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Agent, the
Arrangers and their Affiliates, including the reasonable fees, charges and
disbursements of (a) a single transaction and documentation counsel for the
Agent and the Arrangers and (b) such other local counsel and special counsel as
may be required in the reasonable judgment of the Agent and the Arrangers, in
connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Agent, the Arrangers, the Issuing Bank or any Lender, (including the
fees, charges and disbursements of (a) a single transaction and documentation
counsel for the Agent, the Arrangers, the Issuing Bank and any Lender and (b)
such other local counsel and special counsel as may be required in the
reasonable judgment of the Agent and the Arrangers) in connection with
documentary taxes or the enforcement or protection of its rights in connection
with the Loan Documents, including its rights under this Section, or in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Agent, the Arrangers, the
Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an "Indemnitee") against,
and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of (a) a single transaction and documentation counsel for any
Indemnitee and (b) such other local counsel and special counsel as may be
required in the reasonable judgment of the Agent and the Arrangers,
incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective
obligations thereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the
use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or
Release of Hazardous Materials on or from any Mortgaged Property or any
other property currently or formerly owned or operated by the Borrower or
any of its Subsidiaries, or any
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Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based
on contract, tort or any other theory and regardless of whether any
Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally
agrees to pay to the Agent, the Issuing Bank or the Swingline Lender, as
the case may be, such Lender's pro rata share (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Agent, the Issuing Bank or the
Swingline Lender in its capacity as such. For purposes hereof, a Lender's
"pro rata share" shall be determined based upon its share of the sum of the
total Revolving Exposures, outstanding Term Loans and unused Commitments at
the time.
(d) To the extent permitted by applicable law, neither Holdings
nor the Borrower shall assert, and each hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or
any agreement or instrument contemplated hereby, the Transactions, any Loan
or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later
than 10 days after written demand therefor.
Section 9.04 Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. 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 (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may 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), with the prior
written consent (such consent not to be unreasonably withheld or delayed)
of:
(A) the Borrower, provided that no consent of the Borrower shall
be required (x) for an assignment by a Revolving Lender to an existing
Revolving Lender or an assignment of Term Loans to a Lender, an
Affiliate of a Lender, an Approved Fund (as defined below) or, (y) if
an Event of Default under clause (a), (b), (h) or (i) of Article VII
has occurred and is continuing, any other assignee; and
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(B) the Administrative Agent (and, in the case of an assignment
of all or a portion of any Lender's obligations in respect of its LC
Exposure, the Issuing Bank), provided that no consent of the
Administrative Agent or Issuing Bank, as the case may be, shall be
required for an assignment of Term Loans to an assignee that is a
Lender immediately prior to giving effect to such assignment, an
Affiliate of a Lender or an Approved Fund.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of
the Commitment 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) shall not
be less than $1,000,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such consent
of the Borrower shall be required if an Event of Default under clause
(a), (b), (h) or (i) of Article VII has occurred and is continuing;
(B) 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, provided that this clause shall not
be construed to prohibit the assignment of a proportionate part of all
the assigning Lender's rights and obligations in respect of one Class
of Commitments or Loans;
(C) 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 (it being understood that
only a single processing and recordation fee of $3,500 will be payable
with respect to any multiple assignments to or by a Lender, an
Affiliate of a Lender or an Approved Fund pursuant to clause (ii)(A)
above, each of which is individually less than $1,000,000, that are
simultaneously consummated); and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire.
For purposes of this Section 9.04(b), the term "Approved Fund" has the
following meaning:
"Approved Fund" means any Person (other than an natural person) that
is engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) any
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder
shall be a party hereto 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 Sections 2.15, 2.16, 2.17 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated
for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
paragraph (c) of this Section.
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(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans and LC Disbursements
owing to, each Lender pursuant to the terms hereof from time to time,
which register shall indicate that each lender is entitled to interest
paid with respect to such Loans and LC Disbursements (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any
Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(v) Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee's completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written
consent to such assignment required by paragraph (b) of this Section,
the Administrative Agent shall accept such Assignment and Assumption
and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it
has been recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Issuing Bank or the Swingline
Lender, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans owing to it); provided that (A) such Lender's obligations under this
Agreement shall remain unchanged, (B) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations and (C) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the
sole right to enforce 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 to Section 9.02(b) that affects such
Participant. Subject to paragraph (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this
Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.18(c) as though
it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would
have been entitled to receive with respect to the participation sold
to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 2.17 unless the Borrower is
notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with
Section 2.17(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this
Section
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shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall
release a Lender from any of its obligations hereunder or substitute any
such pledgee or assignee for such Lender as a party hereto.
Section 9.05 Survival. All covenants, agreements, representations and
warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.15, 2.16, 2.17 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
Section 9.06 Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement, the other
Loan Documents and any separate letter agreements with respect to fees payable
to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. This Agreement shall become effective when the conditions set forth in
Section 5 of the Agreement to Amend and Restate shall have been satisfied, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
Section 9.07 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
Section 9.08 Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
Section 9.09 Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
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(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New
York County and of the United States District Court of the Southern
District of New York, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to any Loan Document, or
for recognition or enforcement of any judgment, and each of the parties
hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement or any other Loan Document shall affect any
right that the Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against Holdings, the Borrower or its properties in the courts of
any jurisdiction.
(c) Each of Holdings and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred
to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in
this Agreement or any other Loan Document will affect the right of any
party to this Agreement to serve process in any other manner permitted by
law.
Section 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
Section 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12 Confidentiality. Each of the Agent, the Issuing Bank and
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including accountants,
legal counsel and other advisors (it being understood that the Persons to whom
such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d)
to any other party to this Agreement, (e) in connection with the exercise of any
remedies hereunder or any suit, action or
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proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (ii) any pledgee
referred to in Section 9.04(d) or (iii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Borrower
and its obligations, (g) with the consent of the Borrower or (h) to the extent
such Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Agent, the Issuing Bank
or any Lender on a nonconfidential basis from a source other than Holdings or
the Borrower. For the purposes of this Section, "Information" means all
information received from Holdings or the Borrower relating to Holdings or the
Borrower or its business, other than any such information that is available to
the Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to
disclosure by Holdings or the Borrower; provided that, in the case of
information received from Holdings or the Borrower after the date hereof, such
information is clearly identified at the time of delivery as 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. Notwithstanding anything herein to the contrary or in
any other written or oral understanding or agreement to which the parties hereto
are parties or by which they are bound, the parties to this Agreement agree that
(i) any obligations of confidentiality contained herein and therein do not apply
and have not applied from the commencement of discussions between the parties to
the tax treatment and tax structure of the transactions contemplated by the Loan
Documents and (ii) each party (and any employee, representative or other agent
of such party) may disclose to any and all persons, without limitation of any
kind, the tax treatment and tax structure of the transactions contemplated by
the Loan Documents and all materials of any kind (including opinions or other
tax analyses) that are provided to it relating to such tax treatment and tax
structure; provided that tax treatment and tax structure shall not include the
identity of any existing or future party (or any affiliate of such party) to
this Agreement or any other Loan Document and provided further that each party
recognizes that the privilege each has to maintain, in its sole discretion, the
confidentiality of a communication relating to the transactions contemplated by
the Loan Documents, including a confidential communication with its attorney or
a confidential communication with a federally authorized tax practitioner under
Section 7525 of the Code, is not intended to be affected by the foregoing.
Section 9.13 Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
Section 9.14 Termination or Release. (a) At such time as the Loans,
the Borrower's obligations to reimburse the Issuing Bank pursuant to Section
2.05(e) for LC Disbursements, all accrued interest and fees under this
Agreement, and all other obligations under the Loan Documents (other than (i)
obligations under Sections 2.15, 2.17 and 9.03 that are not then due and payable
and (ii) obligations in respect of outstanding Letters of Credit) shall have
been paid in full in cash, the Commitments have been terminated and all Letters
of Credit shall have been discharged or cash collateralized to the reasonable
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satisfaction of the Agent and Issuing Bank (each of which shall have confirmed
such satisfaction by written notice to the Borrower), the Collateral shall be
released from the Liens created by the Security Documents, and the obligations
(other than those expressly stated to survive termination) of the Agent and each
Loan Party under the Security Documents shall terminate, all without delivery of
any instrument or performance of any act by any Person.
(b) A Subsidiary Loan Party shall automatically be released from
its obligations under the Collateral Agreement and the security interests
in the Collateral of such Subsidiary Loan Party shall be automatically
released upon the consummation of any transaction permitted by this
Agreement as a result of which such Subsidiary Loan Party ceases to be a
Subsidiary of the Borrower.
(c) Upon any sale or other transfer by any Loan Party of any
Collateral that is permitted under this Agreement to any Person that is not
a Loan Party, or upon the effectiveness of any written consent to the
release of the security interest granted by the Collateral Agreement in any
Collateral pursuant to Section 9.02 of this Agreement, the security
interest in such Collateral shall be automatically released.
(d) In connection with any termination or release pursuant to
paragraph (a), (b) or (c) of this Section 9.14, the Collateral Agent shall
execute and deliver to any Loan Party at such Loan Party's expense all
documents that such Loan Party shall reasonably request to evidence such
termination or release. Any execution and delivery of documents pursuant to
this Section 9.14 shall be without recourse to or warranty by the
Collateral Agent or any Lender.
Section 9.15 USA Patriot Act. Each Lender hereby notifies the Parent,
Holdings and the Borrower that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "USA
Patriot Act"), it is required to obtain, verify and record information that
identifies the Parent, Holdings and the Borrower, which information includes the
name and address of the Parent, Holdings and the Borrower and other information
that will allow such Lender to identify the Parent, Holdings and the Borrower in
accordance with the USA Patriot Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
DEX MEDIA WEST, INC.,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Secretary
DEX MEDIA WEST LLC,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Secretary
DEX MEDIA, INC.,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President & Secretary
Signature Page to the Dex Media West Credit Agreement
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Signature Page to the Dex Media West Credit Agreement